First Department, March, 1910.

[Vol. 187. and on the same theory with equal propriety leave might be granted to the defendant to bring a new action on the second judgment thus recovered, and this might be continued indefinitely. We are of opinion, however, that it was within the authority of the court to grant leave to the defendant either to bring an action on the judgment to offset it against any judgment that may be recovered by the plaintiff in this action as soon as such recovery is had, or, as was done, to plead it as a counterclaim herein. Under the former practice which authorized the pleading of a judgment or other cause of action as a setoff without any demand for affirmative relief, that was not regarded as an action on the judgment within the purview of the statute requiring leave of the court to sue upon the judgment. (Wells v. Henshaw, 3 Bosw. 625; Clark v. Story, 29 Barb. 295; Cornell v. Donovan, 14 N. Y. St. Repr. 687.) But it has been held that an action to set off a judgment recovered or owned by the plaintiff against a judgment recovered or owned by the defendant is an action on the judgment. (Dieffenbach v. Roch, 112 N. Y. 621.) Therefore, leave of the court would doubtless be necessary to authorize the defendant to bring such an independent action to set off its judgment. The Code of Civil Procedure does not provide for pleading a setoff. The word "counterclaim" only is used. (Code Civ. Proc. §§ 500, 501; Throop's note to § 501.) Doubtless the Legislature intended to authorize the pleading of a cause of action as a counterclaim in reduction of any recovery to which the plaintiff might otherwise be entitled the same as under the former practice in pleading a setoff, for section 509 of the Code of Civil Procedure provides as follows: "Where the defendant deems himself entitled to an affirmative judgment against the plaintiff, by reason of a counterclaim interposed by him, he must demand the judgment in his answer." Doubtless the defendant might counterclaim its judgment as a setoff in extinguishment or reduction of the plaintiff's cause of action without demanding an affirmative judgment, and that is the remedy which counsel for appellant contends is open to it, but if it were to do that it would run the risk of extinguishing its judgment even though the plaintiff failed to establish a cause of action, unless the record showed that plaintiff's cause of action was not sustained, and likewise if plaintiff established a cause of action for less than the amount of its judgment, for such was the rule

App. Div.]

First Department, March, 1910.

applicable to setoffs. (McGuinty v. Herrick, 5 Wend. 240; Freem. Judg. § 279.) If the defendant be not permitted to plead its judgment as a counterclaim and the plaintiff fails to establish his cause of action his complaint will be dismissed, with costs. Assuming that the defendant's judgment is a proper counterclaim to the plaintiff's cause of action, if the defendant be permitted to plead it and to recover an affirmative judgment upon it in the event that the plaintiff fails to establish his cause of action the costs recovered against the plaintiff will be no more than if the counterclaim had not been pleaded. The only hardship that may result to the plaintiff will be in having another judgment with additional interest against him; but satisfaction of either would pro tanto satisfy the other. (See Doty v. Russell, 5 Wend. 129.) On the other hand, if the counterclaim be pleaded and the plaintiff establish a cause of action greater than the amount of the counterclaim, he will have a judgment for the balance and the defendant's judgment will be extinguished, and should he fail to establish a cause of action equal to the counterclaim the defendant will have judgment for the amount its counterclaim exceeds the plaintiff's demand and its former judgment will be satisfied to the extent of the plaintiff's cause of action. (Doty v. Russell, supra.)

It appears that the plaintiff had left the United States and was in Italy at the time the motion was made, and the attorney for the defendant states in his affidavit that he is informed and believes that the plaintiff is residing in Italy, and has no property within this State, but he does not state the sources of his information or the grounds of his belief. It is stated in an affidavit made by the attorney for the plaintiff that the plaintiff is only in Italy temporarily, and contemplates returning to New York shortly. If this judgment be a proper counterclaim, it is manifest that the defendant may be seriously prejudiced if it be not permitted to plead it as a counterclaim and to demand affirmative relief thereon. The mere recovery of a judgment against the defendant, where it has a claim against the plaintiff for perhaps more than such judgment which has been judicially established, would be prejudicial to its rights, and may be prejudicial in other ways. Defendant might succeed in having its judgment offset by motion, but that is addressed APP. DIV.- VOL. CXXXVII.

13

First Department, March, 1910.

[Vol. 137. to the sound discretion of the court; and it is manifest that the relief could not be granted if the plaintiff's cause of action or judg ment should be assigned for the rights of the assignee could not be adjudicated on a motion unless he consented thereto. (Smith v. Lowden, 1 Sandf. 696; Story v. Patten, 3 Wend. 331; Baker v. Hoag, 6 How. Pr. 201; Zogbaum v. Parker, 55 N. Y. 120. See, also, Davidson v. Alfaro, 16 Hun, 353; affd., 80 N. Y. 660.) It then would be obliged to resort to an action to set off its judgment against the plaintiff's judgment, which likewise would not be a matter of right, but would be addressed to the discretion of the court (De Camp v. Thomson, 159 N. Y. 444), and in that action it might obtain an injunction, but in the meantime an execution might be issued on the plaintiff's judgment and levied on its property. (See Code Civ. Proc. § 1365.) The statutory authority to grant leave to bring an action on the judgment authorizes the court, we think, to permit it to be pleaded as a counterclaim. The hardship which that will entail upon the plaintiff is incident to securing to the defendant adequate protection in its rights.

It follows, therefore, that the order should be modified by striking out the provision thereof granting leave to the defendant generally to bring an action on the judgment, and as thus modified affirmed, without costs.

CLARKE, MCLAUGHLIN, SCOTT and DOWLING, JJ., concurred.

Order modified as directed in opinion, and as so modified affirmed, without costs.

GEORGE MORGAN, Appellant, v. THE CITY OF NEW YORK,

Respondent.

First Department, March 11, 1910.

Municipal corporations - right of employee to recover for services rendered in taking acknowledgments - burden of proof.

A person receiving a salary as a messenger in the bureau of buildings of the city of New York, who is also a commissioner of deeds, is entitled to recover from the city for services rendered in taking acknowledgments unless such services were rendered gratuitously or as part of his regular duties. In a suit to recover

App. Div.]

First Department, March, 1910.

for services rendered in taking such acknowledgments, the burden is upon the city to show that they were rendered gratuitously or as part of his regular duty. In the absence of such evidence, the plaintiff is entitled to recover on showing that the services were rendered outside of the hours of service in his official position and that he has not been paid.

APPEAL by the plaintiff, George Morgan, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 7th day of April, 1908, upon the verdict of a jury, and also from an order entered in said clerk's office on the 2d day of April, 1908, denying the plaintiff's motion for a new trial made upon the minutes.

Alfred J. Talley, for the appellant.

Clarence L. Barber, for the respondent.

MCLAUGHLIN, J.:

The plaintiff, between the 1st of October, 1901, and the 6th of November, 1903, was a commissioner of deeds of the city of New York, and as such administered an oath and certified the same to 27,500 affidavits made by various persons in or having business with the bureau of buildings in the city of New York. During that time he was a messenger in that department of the city government, receiving a salary of $1,500 a year. He claims that the affidavits were sworn to before him before office hours and that he is entitled to the statutory fee of twelve cents for administering each oath and certifying each affidavit, and he brought this action to recover the same from the city. The city denied his right to the relief asked and alleged affirmatively, among other things, that the services rendered were a part of his regular duties and that the same were rendered voluntarily and without any agreement between him and the city for any compensation over and above his regular salThe city had a verdict in its favor and from the judgment entered thereon and an order denying a motion for a new trial plaintiff appeals. On a former trial a verdict was directed in favor of the defendant, which was affirmed by this court (Morgan v. City of New York, 115 App. Div. 893), but the order of affirmance and the judgment of the trial court were reversed by the Court of Appeals and a new trial ordered (190 N. Y. 237), the court holding that the plaintiff was entitled to recover for the services rendered

ary.

First Department, March, 1910.

[Vol. 137. by him as a commissioner of deeds in administering the oaths and certifying the same, unless such services were performed with the understanding that they should be part of his duty as a messenger in the department, for which he received a salary.

The testimony on the part of the plaintiff — and no evidence was offered on the part of the defendant-tends to show that the plaintiff claimed, during all of the time that the services were rendered, that he was entitled to compensation. He kept a written memorandum of the time and the title of each case in which he had administered an oath and certified the same. He stated to Class, who was the chief clerk in the bureau of buildings, on several occasions that he claimed that he was entitled to compensation.

It also appeared that Wallace, the commissioner of buildings during a part of the time when the services were rendered, knew that plaintiff claimed compensation outside of his salary for taking and certifying the affidavits. The plaintiff stated to the commissioner that he had a claim for such services and asked him if he had any objection thereto, and the commissioner replied "if he was entitled to it he ought to get it." Stewart, Wallace's successor during the balance of the time, testified that he never directed the plaintiff to take the affidavits without compensation, and he knew that for rendering the services in question the plaintiff claimed compensation. This was the situation down to the 6th of November, 1903, when the finance department of the city called the attention of the superintendent of buildings to the matter, and then the plaintiff was required to sign a stipulation that thereafter the affidavits would be taken without compensation. All of the services for which a claim. is here made were rendered prior to such stipulation.

For the services rendered by the plaintiff as commissioner of deeds the law implied an obligation to pay, unless the services were rendered gratuitously or as a part of the plaintiff's regular duties, and without expectation of compensation therefor. If they were rendered gratuitously, or without expectation of compensation, the burden was upon defendant to prove it-that was a matter of defense. Plaintiff made out his cause of action when he showed that the services were rendered outside of the time when he was required to render services under his official position and that he had not been paid.