Hyperlawhypertext legal databasebeta City of New York v. Alpha Contracting Corp. 182 Misc. 115

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City of New York v. Alpha Contracting Corp.

182 Misc. 115 Court Supreme Court, Appellate Term, First Department, Decision date 1944-06-23 English

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p. 115
City of New York, Appellant, v. Alpha Contracting Corporation, Respondent.
Supreme Court, Appellate Term, First Department,
June 23, 1944.
p. 116
Ignatius M. Wilkinson, Corporation Counsel (John C. Clancy and Saul A. Shames of counsel), for appellant.
Irwin H. Rosenberg and Herbert M. Rosenberg for respondent.

The counterclaim interposed by defendant is barred by the six months’ period of limitation contained in the contract entered into between the parties. Such limitation is to be considered on a parity with corresponding statutory provisions. (Amex Asphalt Corp. v. City of New York, 263 App. Div. 968 , affd. 288 N. Y. 721 .) The fact that the counterclaim arose out of the same contract upon which plaintiff’s cause of action is predicated, will not rescue the counterclaim in view of the prohibition contained in section 61 of the Civil Practice Act. (Fish v. Conley, 221 App. Div. 609 ; Garben v. McKittrick, 225 App. Div. 772 .)

The order should be reversed, with ten dollars costs and disbursements, and motion granted.

Hammeb, Shiektag and Edee, JJ., concur.

Order reversed, etc.

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