Fettretch v. McKay — 11 Abb. Pr. 453

Majority

p. 453

FETTRETCH against McKAY.

Court of Appeals;

February, 1872.

Headnote

Pleading.—Frivolous and Irrelevant Answer. —Motion to strike out Counter-claim.

a counter-claim cannot he stricken out as frivolous; nor can it be stricken out as an irrelevant defense. The remedy is by demurrer, or by motion under section 160 of the Code, to have it made more definite and certain.

Appeal from an order.

James Fettretch sued Frederick McKay, in the supreme court.

The complaint alleged that the defendant had agreed to purchase from the plaintiff certain real estate in the city of New York, and that a deed therefor was delivered to the defendant; but that there being cer tain unpaid taxes, assessments and Croton-water rents, which, by the terms of the agreement, the plaintiff was to pay, it was agreed between the parties that the defendant should retain one thousand dollars of the purchase money, which he should pay, on receiving receipts for such taxes, &c. That the plaintiff had paid the taxes, &c., and delivered to the defendant receipts therefor, and that the defendant, although requested to do so, had not paid any part of the one thousand dollars, except thirty-three dollars and thirty-three cents, leaving due, nine hundred and sixty-six dollars and sixty-seven cents.

The answer of the defendant, after denying the material allegations of the complaint, set up as a counterclaim, that contrary to the will of the defendant, the plaintiff had refused to surrender possession of the

p. 454

premises after the delivery of the deed, and thereby damaged the defendant to the extent of one'thousand dollars; and that the plaintiff had also carried away, against the will of defendant, all the gas fixtures and iron feed racks, which, by the terms of the agreement, were purchased with the property, whereby defendant was damaged one hundred and eighty dollars.

The plaintiff moved at special term, to strike out the counter-claim as frivolous and irrelevant. The motion was denied, and from the denial plaintiff appealed to the general term, where the order was affirmed, whereupon plaintiff appealed to the court of appeals.

H. C. Denison, for plaintiff, appellant.

Joseph Fettretch, for defendent, respondent.

The Code of Procedure does not authorize the striking out of an answer, or any part of an answer, on the ground that it is frivolous (Briggs v. Bergen, 23 N. Y., 162 ; Thompson v. Erie R. R., Court of Appeals, May, 1871). But we must assume that this answer was not stricken out as frivolous (23 N. Y., supra).

There is no pretense that the counter-claim is sham. A sbam pleading is a false pleading. There is nothing in the papers to show, nor is it claimed, that this counter-claim is false.

Nor can this counter-claim be stricken out as an irrelevant defense. It is not a defense. There is a distinction between a counter-claim and a defense (Code, § 149, subd. 2). It is an affirmation of a cause of action against the plaintiff in the nature of a cross action, upon which the defendant may have an affirmative judgment against the plaintiff. It is not liable to be stricken out on motion (Collins v. Swan, 7 Robt., 160). Nor can it be entirely stricken out under section 160.

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If there is a defect in the counter-claim in this case, it must be reached by demurrer, or by motion, under section 160, to make it more definite and certain.

The orders appealed from, of special and general term, should be reversed, and motion denied, with costs to the appellant.