Fett v. Greenstein — 46 Misc. 574

Majority

p. 574

David Fett, Respondent, v. Nathan Greenstein, Myer Simon and. David Leerburger, Appellants.

(Supreme Court, Appellate Term,

March, 1905.)

Headnote

Pleading — Counterclaim to counterclaim stricken out — Remedy of plaintiff.

A counterclaim to a counterclaim is unauthorized under section 614 of the Code of Civil Procedure.

Where the answer to a complaint for breach of a contract of employment sets up a counterclaim for money advanced, plaintiff may not reply with a counterclaim for services rendered, but should move for leave to amend his complaint. The reply will he stricken out on motion.^[1]

Appeal by the defendants from an order of the City Court of the city of New York.

H. B. Davis, for appellants.

Samuel S. Koenig (Joseph Fischer, of counsel), for respondent.

This is an appeal from an order denying a motion of the defendants to strike out a paragraph of the plaintiffs reply. The complaint sets forth a breach of contract of employment. The answer among other things sets up a counterclaim of $350 for money advanced. The plaintiff replies that in pursuance of the agreement set forth in the complaint, he rendered services to the defendants of the value of $225, and asks that such sum may be set off against any sum that may be found due the defendants on their counterclaim. The defendants moved to strike out this set-off, and from the order denying the said motion this appeal is taken.

The allegation in the reply is a new cause of action by the plaintiff against the defendants for work, labor and services

p. 575

performed amounting to the sum of $225. Practically, this is a counterclaim to a counterclaim and is unauthorized under section 514 of the Code of Civil Procedure. The remedy for the plaintiff on receipt of the answer setting up the counterclaim was to move for leave to amend the complaint. A case much in point is Fitzgerald v. Rightmeyer, 12 Misc. Rep. 186 .

The order appealed from must he reversed, with costs and disbursements.

Scott and O’Gorman, JJ., concur.

Order reversed, with costs and disbursements.

Cases cited

Fitzgerald v. Rightmeyer 12 Misc. Rep. 186 N.Y. Sup. Ct. 1895-05-08 p. 575