Majority
p. 249James J. Fitzgerald et al., Pl’ffs, v. J. Clarance Rightmyer et al., Def’ts. (Supreme Court, Albany Special Term, Filed May 8, 1895.)
Headnote
Pleadings — Counterclaim:.A counterclaim to a counterclaim is not authorized by the Code.
Motion to strike out that portion of the reply which sets up separate and distinct causes of action.
James J. Fitzgerald, for pl’ffs ; Duntz & Aldcraft, for def’ts.
The complaint is for goods sold and delivered, The answer consists of a general denial and of a counterclaim against the plaintiffs for the use of vehicles furnished to the plaintiffs. The reply to the counterclaim consists of a denial, and also of a further and additional claim to that set fortli in the complaint, for goods sold and delivered, and work, labor, and service, being separate and distinct causes of action to that set up in the
p. 250
complaint, but of the same nature; and the motion is'to strike out that portion of the reply which sets Up separate and distinct claims for goods sold and delivered, and for work, labor, and services, in opposition to the counterclaim in the defendants’ answer. Practically, this is a counterclaim to a counterclaim, and it is unauthorized by the Code. In our system of practice, the only pleadings allowed are those designated in the Code of Civil Procedure. The only reply authorized to a counterclaim is a deniál thereof, or the pleading of new matter not inconsistent with that already set forth in the complaint, consti tuting - a defense to the counterclaim. A distinction has always been recognized between a defense and a counterclaim. New matter in a reply, which is not inconsistent with the complaint, and which constituted a separate and distinct cause of action against the defendant, in th'e orderly and regular course of pleading, has no place in the reply, but should be embraced in the complaint ; otherwise, no pleading being authorized in answer to a reply, we would have the case of a cause of action being alleged and proseo uted against a defendant, to which he could make no answer, either - to admit, deny, or set up any affirmative defense to it. It is unnecessary to refer .to the ragged and irregular way of presenting the plaintiffs’ case upon the trial that would result from permitti ng this kind of pleading.
The motion is granted, with $L'0' costs.