Jacrov Amusement Co. v. Fischel

Plaintiff moves to strike out the counterclaim set up in defendants’ answer against plaintiff and Molly Minsky, the latter of whom defendants seek to join as a party defendant, pursuant to the provisions of section 271 of the Civil Practice Act. I do not think that the defendants, by what they here designate as a counterclaim, raise questions between themselves and the plaintiff “ along with ” the third person sought to be joined as a party defendant. The basis of a counterclaim is a cause of action on the part of a defendant against a plaintiff. No cause of action is here stated by the defendants against plaintiff, nor is one stated by the defendants against Molly Minsky. The “ counterclaim ” presents a situation whereby one of the defendants, by virtue of an agreement between the latter and Molly Minsky, involving the disposition as between them of the fund for which plaintiff sues, may be liable to the said Molly Minsky therefor. Plaintiff was not a party to this agreement, and any questions concerning defendants’ liability arising by virtue thereof are entirely independent of the plaintiff. Hence the defendants do not present a counterclaim which raises questions between themselves and the plaintiff along with the third person sought to be joined as a codefendant. It may well be that Molly Minsky should be made a party to this action to insure a complete determination of the controversy.

It would seem clear, however, that defendants have adopted incorrect practice in their efforts to attain that result. They apparently did not choose to take advantage of the provisions of section 287 of the Civil Practice Act which might have been available to them before service of their answer. (Pollack v. Jackson, 124 Misc. 608 .) It may be suggested, however, that section 193, subdivision 3, of the Civil Practice Act provides that, where a person not a party to the action has an interest in the subject thereof, and makes application to the court to be made a party, it must direct him to be brought in by the proper amendment. The sufficiency of the complaint has not been considered, since this is not a motion for judgment on the pleadings or to determine the sufficiency of any of the pleadings as such.^[1]