Hyperlawhypertext legal database Bockover v. Harris 43 N.Y. Super. Ct. 548

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Bockover v. Harris

43 N.Y. Super. Ct. 548 11 Jones & S. 548 Court N.Y. Super. Ct. Decision date 1877-06-25 English

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p. 548
MARY BOCKOVER, Administratrix of James H. Bockover, Deceased, Plaintiff and Respondant, v. WILLIAM A. HARRIS and WILLIAM M. HALSTED, impleaded with others, Defendants and Appellants.

Headnote

COUNTER-CLAIM—SET-OFF—-RECOUPMENT.
1. Not allowed, when.
(a) Joint claims in favor of two out of 'a number of defendants cannot he counter-claimed, set-off or recouped, wheii the action is
p. 549
such that a joint judgment cannot be rendered against such two, separately from the others.
Decided June 25, 1877.
1. Partnership, Action for account.
(a) The administratrix of B. brought action against H. and A. and several others, alleging a copartnership between B. and the defendants, and demanding an accounting. H. and A. put in a joint answer, whereby they denied the allegations of the complaint; and for a second defense averred that they, being members of a certain firm, entered into an agreement with the plaintiff in their individual capacities, whereby they employed him to render services for them, and in effect averred that all the services he rendered, and all that he did either for them or the firm, were rendered and done under that agreement; and for a third defense, by way of counter-claim, they set up what they relied on as a cause of action in their joint favor against the plaintiff, arising out of the agreement in the second defense referred to. Plaintiff demurred to the third defense. The demurrer was sustained at special term, Sanford, J., writing, holding above propositions. The answering defendants appealed.
Before Sedgwick, Speir and Freedman, JJ.
Evarts, Southmayd & Choate, attorneys, Joseph H. Choate, of counsel, for appellants.
Weeks & Forster, attorneys, George H. Forster, of counsel, for respondents.

—The opinion of Judge Sanford fully - sustains the order appealed from. It may be added that on the complaint in its present form, the plaintiff could not have judgment against the two defendants who set up the counter-claim, upon the agreement stated in the counter-claim.

Order affirmed with costs.