Quinn v. O'Reilly — 148 N.Y.S. 1139

Majority

p. 1139

QUINN et al., Appellants, v. O’Reilly, Respondent.

(Supreme Court, Appellate Division, Second Department.

May 29, 1914.)

Headnote

Action by John Quinn and James Quinn, copartners, etc., against James O’Reilly.

Order of the County Court of Kings County reversed, with $10 costs and disbursements, and order directed for judgment allowing plaintiffs’ demurrer to defense and counterclaim pleaded in defendant’s amended answer, with costs, with leave to defendant to amend the amended answer within 20 days on payment of costs. The defendant’s defense is obviously insufficient in law upon its face. Defendant’s counterclaim is not of the character

p. 1140

specified in section 501 of the Code of Civil Procedure. It states, if anything, a cause of action in tort, which does not arise out of the contract or transaction set forth in the complaint as the foundation of pIaintifi~s' claim, and which is not connected with the subject-matter of the action.