Luckett v. Cohen

• Court: United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
• Citation: 169 F. Supp. 808
• Parties: H. Boyce LUCKETT, Plaintiff, v. Manuel COHEN, Defendant.
• Decision Date: 10 October 1956

169 F. Supp. 808

H. Boyce LUCKETT, Plaintiff,
v.
Manuel COHEN, Defendant.

United States District Court S. D. New York.

October 10, 1956.

169 F. Supp. 809

Kalman I. Nulman, New York City, for plaintiff.

Schwartz, Nathanson & Cohen, New York City, for defendant George H. Schwartz and Paul E. Gelbard, New York City, of counsel.

RYAN, District Judge.

Plaintiff suing as assignee on a promissory note made by defendant moves to dismiss the first and second counterclaims pleaded in the answer on the ground that they are insufficient in law.

Jurisdiction is predicated on diversity; the sufficiency of the claims is to be tested by New York law. The note sued upon is alleged to have been executed and delivered in Mexico. There has been no arrest of the person of defendant or seizure or similar process with respect to his property. The second counterclaim which pleads a transaction had with plaintiff's assignor may be asserted only by way of off-set and is to be so denominated in an amended answer to be served.

The first counterclaim alleges that plaintiff and his assignor conspired to defraud defendant by bringing the instant suit well knowing that the note sued upon had been paid, and that as a result of such conspiracy "defendant has been damaged to the extent of the costs, expenses and legal fees entailed in the defense of this action, amounting to $3,000 and will be damaged to the extent of any recovery had upon the alleged note sued upon herein," to wit in the amount of $12,789.78.

No injury to or interference with defendant's business is alleged and the claim therefore may not be sustained on the authority of J. J. Theatres, Inc. v. V. R. O. K. Co., Sup., 96 N.Y.S.2d 271; Munson Line v. Green, D.C., 6 F.R.D. 14, (appeal dismissed 2 Cir., 165 F.2d 321); Kellogg v. Sowerby, 190 N.Y. 370, 83 N.E. 47. The only injury complained of by defendant is the expense of defending the suit—the item representing the amount of the note which plaintiff might recover is too ridiculous to mention further. It is elementary that in the absence of special statute so providing in American jurisprudence, to which New York is no exception, counsel fees are not recoverable by a successful litigant—the expense of successfully defending or maintaining suit is reimbursable solely by way of taxable costs. Doyle v. Allstate Ins. Co., 1 N.Y.2d 439, 154 N.Y.S.2d 10, 136 N.E.2d 484, July 11, 1956. The time, effort and money expended are "the consequences of every suit." J. J. Theatres, Inc. v. V. R. O. K. Co., supra 96 N.Y.S.2d 273.

But obviously what defendant has attemped to do is plead a claim for malicious prosecution—in which case counsel fees might be recoverable as one of the items of damage proximately caused by the filing of an unfounded, baseless and malicious suit. 58 Yale L. J. p. 490, "Counterclaim for Malicious Prosecution in the Action Alleged to be Malicious,"; Sec. 681(c) and comment. Restatement, Torts; Meisels v. J. C. A. Trading Corp., 189 Misc. 46, 69 N.Y.S.2d 720; Lobel v. Trade Bank of New York, 132 Misc. 643, 229 N.Y.S. 778. Whether such fees would be recoverable in the absence of proof of actual damage I do not now determine.

169 F. Supp. 810

It is an ancient rule of...