Morris v. Emmons — 4 N.Y. St. Rep. 882

Majority

p. 882

WILLIAM MORRIS, Appellant, v. EMILY W. EMMONS, Respondent.

Headnote

Counter claim—When admissible—Code Civil Procedure, § 801.

Appeal from an interlocutory judgment overruling the plaintiff’s demurrer to .the counterclaim interposed by the defendant.

■7. H. Whitelegge, for appellant; Frank E. Smith, for respondent.

The complaint in this case is very justly criticised in the opinion. of the court below because of its complex character. The plaintiff’s cause of action seems to have originated in a lease bearing date the 24th of March, 1885, between himself and the defendant, and by which he was to pay for' the premises demised, the annual rent of twenty-four hundred dollars, in equal monthly payments in advance. And it is alleged that the execution of the lease by him was accomplished by fraudulent devices, and further that he demanded possession, which was withheld. And by reason of these deceits and wrongs he claims damages. The counter-claim, it clearly appears, is one for the rent agreed to be paid by the lease mentioned. No doubt can be well entertained on that subject.

Assuming that to be a correct view of the outcome of the pleadings there can be no doubt that it is connected with the subject of the action, and, therefore, admissible. Code, § 501. We concur, therefore, in.tlre views expressed by the learned justice in the court below, and think that the judgment should be affirmed with costs, but with liberty to the plaintiff to reply.

Davis, P. J., and Daniels, J., concur.