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Rosensweig v. McCaffrey

57 N.Y.S. 219 Court N.Y. City Ct. Decision date 1899-03-29 English

Delivered by FITZSIMONS, C. J.

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p. 219
ROSENSWEIG v. McCAFFREY.
(City Court of New York, General Term.
March 29, 1899.)

Headnote

Counterclaim—Validity.
Where a complaint is based on a debt due a firm, a counterclaim against one of the firm is properly excluded.
Appeial from trial term.
Action by David Rosensweig against Margaret A. McCaffrey. Judgment for plaintiff. Defendant appeals.
Affirmed.
Argued before FITZSIMORS, C. J., and COREAN and SCHCOHMAN, JJ.
Thomas O’Callahan, Jr., for appellant.
Jacob Friedman, for respondent.

The complaint is based upon a debt due to Griffin & Giles for commission due them in effecting an exchange of certain premises owned by defendant. A counterclaim is set up in defendant’s answer against Griffin alone. The counterclaim was demurred to. Demurrer was sustained; hence the appeal.

It was proper to sustain the demurrer. The counterclaim set forth was based upon a debt due from Griffin alone. The cause of action set forth in the complaint alleged a claim due to Griffin & Giles jointly. A separate debt cannot be set off against a joint debt. Spofford v. Rowan, 124 N. Y. 108 , 26 N. E. 350 . This view of the matter renders it unnecessary for us to consider, the other points-presented by respondent in his demurrer.

Order and judgment appealed from must be affirmed, with costs.. All concur.

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