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Walter v. Carroll

140 N.Y.S. 868 Court N.Y. Sup. Ct. Decision date 1913-02-18 English

Delivered by BENEDICT, J.

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p. 868
WALTER v. CARROLL.
(Supreme Court, Special Term, Kings County.
February 18, 1913.)

Headnote

•Pleading (§ 350[1] )—Judgment on Pleadings—Counterclaim—Premature Motion.
Though there is no reply to defendant’s counterclaim, yet plaintiff’s demand exceeding that of defendant, and the two causes of action not being connected, so that, till the issues on the complaint are tried, it cannot be determined whether defendant’s demand will constitute anything more than an offset to plaintiff’s demand, motion for judgment on the counterclaim, prior to trial of such issues, is premature.
[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 1053, 1054, 1070-1077; Dec. Dig. § 350.*]
Action by one Walter against one Carroll. Defendant moves for ■judgment on her counterclaim. - Denied as premature.
A. Sydney Galitzka, of Brooklyn, for plaintiff.
Jones, McKinny & Steinbrink, of Brooklyn, for defendant.

This motion for judgment in favor of the defendant on her counterclaim because of plaintiff’s failure to reply thereto is premature. The defendant’s demand is much less in amount than that of the plaintiff, and the two causes of action are wholly discqnnected. Until the issues arising upon the complaint have been tried, it cannot be ascertained whether the defendant will be entitled to an af? firmative judgment against the plaintiff, or whether her admittedly valid claim will constitute merely an offset to plaintiff’s demand.

The motion must therefore be denied, without prejudice to renewal after the validity and amount of the plaintiff’s claim have been determined. Crompton v. Seaich, 142 App. Div. 431 , 126 N. Y. Supp. 817 ; Id., 143 App. Div. 284 , 128 N. Y, Supp. 586 .

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