Majority
p. 563Bernhan Chemical and Metal Corporation, Appellant and Respondent, v. Ship-A-Hoy, Ltd., Inc., Respondent and Appellant, (Argued October 9, 1922; decided October 24, 1922.)
Headnote
Pleading — defenses — counterclaims — demurrer to separate defenses and to counterclaims set up in answer.Reported below, 200 App. Div. 399 .
Appeal by plaintiff, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 13, 1922, which reversed so much of an order of Special Term as sustained a demurrer to the defenses set forth in the fourth, fifth and sixth sections of the amended answer and overruled such demurrer. Appeal by defendant, by permission, from so much of said order of the said Appellate Division as sustained plaintiff’s demurrer to the counterclaims alleged in subdivisions 1 and 7 of the amended answer and to the defense set up in subdivision 3 thereof.
The following questions were certified: “1. Does the counterclaim alleged in the subdivision of said answer numbered ‘ I ’ state facts sufficient to constitute a cause of action?
“ 2. Is the defense set forth in the last paragraph of the subdivision of said answer numbered ‘ III ’ sufficient in law upon the face thereof?
“ 3. Is the defense set forth in the last paragraph of the subdivision of said answer numbered ‘ IV ’ sufficient in law upon the face thereof?
“4. Is the defense set forth in the last paragraph of the subdivision of said answer numbered ‘ V ’ sufficient in law upon the face thereof?
“ 5. Is the defense set forth in the last paragraph of the subdivision of said answer numbered ‘ VI ’ sufficient in law upon the face thereof?
“ 6. Is the counterclaim alleged in the subdivision of said answer numbered ' VII ’ of the character specified in section 501 of the Code of Civil Procedure, (a) in that it sets forth a cause of action arising out of the contract
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or transaction set forth in the complaint as the foundation of the plaintiff’s claim, or connected with the subject of the action; or (b) in that it sets forth a cause of action on contract existing at the time of the commencement of this action?
‘‘ 7. Does said last-mentioned counterclaim state facts sufficient to constitute a cause of action? ”
H. H. Nordlinger and Samuel H. Hofstadter for plaintiff, appellant and respondent.
William W. Armstrong for defendant, respondent and appellant.
Order reversed in so far as it affirms Special Term order' sustaining demurrer to counterclaim designated No. 7, and in so far as it reverses Special Term order and sustains demurrer to defense designated No. 3 in second amended answer, and otherwise affirmed, without costs to either party, and with leave to plaintiff to plead over within twenty days where demurrer is overruled. Questions all answered in the affirmative except the sixth, which is not answered; no opinion.
Concur: Hogan, Pound, Crane and Andrews, JJ. His cock, Ch. J., and McLaughlin, J., concur except as to defense designated No. 3, as to which they dissent; Cardozo, J., concurs except as to counterclaim designated No. 7, as to which he dissents.