John Douglas Co. v. Moler

The complaint alleges a cause of action on contract for goods sold by plaintiff to defendant. The answer contains a general denial, sets up a counterclaim on contract for services rendered to plaintiff by defendant, upon which he demands an affirmative judgment, and interposes as a defense, consisting of new

The defense demurred to is undoubtedly insufficient in law, for there is no rule of law or practice that requires a person who may have a claim on contract against another to counterclaim for the same whenever such other may, as plaintiff, bring an action on contract against him; but he can defend such action either under denial or plea in abatement, and, whether successfully or not, still hold his right of action for such claim against such person. Section 507 of the Code permits, but does not command, a defendant to counterclaim.

In the allegation of the answer herein setting up the defense consisting of new matter, it is specifically set forth that the cause of action alleged in the complaint in the supreme court action by this defendant as the plaintiff therein is the same cause of action as that contained in the allegation of his answ'er constituting his counterclaim herein. Thus it appears by positive allegation upon the face of the answer that the defendant here seeks to counterclaim on the same cause of action upon which he, as plaintiff, has already sued in the supreme court the plaintiff herein, as defendant therein. This he is not allowed to do, under the prevailing rule of practice. Ansorge v. Kaiser, (Sup.) 3 N. Y. Supp. 785 . Under section 495 a demurrer by plaintiff is permitted where it “appears on the face of the counterclaim” that there is another action pending between the same parties for the same cause; and defendant’s counsel contends that “appears on the face of the counterclaim”must be strictly construed, and that, so construed, it means that it must appear within the very allegation of the answer which is labeled “Counterclaim,” and that although the defendant specifically alleges in another part of his answer demurred to that his cause of counterclaim set up in the paragraph of his answer labeled “Counterclaim” is the same cause of action upon which, as plaintiff, he has sued this plaintiff, as defendant, in the supreme court action now pending, still the demurrer is not maintainable, because this fact does not appear on the face of, and wholly within, Ms plea, as so labeled. If this contention was the rule of practice, a cause could be forced to trial at circuit, and the court and jury would be compelled to listen to defendant’s proof of the specific allegation of Ms answer, only to be immediately followed by a direction of a verdict against such defendant. AYhen

After the court below sustained plaintiff’s demurrers, and the interlocutory judgment thereon was entered, this cause was tried at circuit upon the issues raised by defendant’s general demal, and resulted in a verdict directed for plaintiff, and upon wMch judgment was entered, from wMch defendant appeals; but there is no record before us to review the same, as no case seems to have been made and settled. To enable the general term to review upon appeal a judgment entered upon the verdict of a jury directed by the court, a case must be prepared and settled as required by section 997 of the Code. Delano v. Harp, 37 Hun, 275 .

Judgments affirmed, with costs. All concur.