Kappelmeier v. Newton Garage, Inc. — 221 A.D. 566

Majority

p. 566

Anton Kappelmeier, Respondent, v. Newton Garage, Inc., Appellant.

(No. 2.)

First Department,

November 4, 1927.

Headnote

Vendor and purchaser — action to recover down payment — counterclaim for specific performance — no reply — defendant entitled to judgment on counterclaim.

In an action by a -purchaser to recover the down payment on the ground that the defendant could not give a marketable title, in which the defendant counterclaimed for specific performance, the defendant is entitled to a judgment on its counterclaim, in the absence of a reply by the plaintiff.

Appeal by the defendant, Newton Garage, Inc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of -the county of New York on the 7th day of February, 1927, denying defendant’s motion for judgment on its counterclaim.

Samuel L. Zucherman, for the appellant.

Benjamin F. Schwartz of counsel [Charles W. Philipbar, attorney], for the respondent.

As stated in the appeal from the order granting judgment upon the pleadings in this action (Kappelmeier v. Newton Garage, Inc., No. 1, 221 App. Div. 564 ), the counterclaim is valid and entitles the defendant to a judgment thereon in the absence of a reply.

It follows that the order denying the defendant’s motion for a judgment on the counterclaim should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, directing judgment for defendant on the counterclaim, with leave to the plaintiff within ten days to open his default and serve a reply upon payment of said costs and the costs of the action to date.

Dowling, P. J., McAvoy, Martin and O’Malley, JJ., concur.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to the plaintiff to reply within ten days from service of order upon payment of said costs and the costs of the action to date.