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4 N.Y.S. 202

McCulloch v. Vibbard

New York Supreme Court

Decided January 28, 1889

New York Supreme Court · decided 1889-01-28

Action by Hugh McCulloch and others against Chauncey Vibbard, Emerson Foote, and Alexander P. Fiske, to recover money and for an injunction. The referee directed judgment dismissing the complaint, and also dismissing a counter-claim filed by defendants. The latter appeal. For opinion on plaintiffs’ appeal from a judgment dismissing the complaint on the merits, .'see 1 H. Y. Hupp. 610.

Decided 1889-01-28

Maoomber, J.,

¶1(dissenting.) I find myself unable to concur in the opinion of the presiding justice in this case. The answer set up, distinctly and unequivocally, a large counter-claim against the old firm of Jay Cooke, Mc-Culloch & Co., composed of ten or a dozen persons, three of whom only are among the plaintiffs. It was incumbent upon the plaintiffs to reply to this counter-claim, which they accordingly did, but they did not, in such reply, allege that there was a defect of parties, in that all of the persons against whom the counter-claim was made were not before the court, nor any other reply in the nature of a plea in abatement, notwithstanding this, however, the referee has overruled or dismissed the counter-claim upon the ground that all of the old firm of Jay Cooke, McCulloch & Co. were not among the plaintiffs. In my judgment, this conclusion is clearly erroneous. The particular purpose of the Code of Civil Procedure in respect to counter-claims, and the issue to be framed thereon, is adjusted as nearly as possible to the rights and duties of a defendant in pleading any defense to the plaintiff’s original cause of action. If the defendant set up a cause of action against the plaintiff by way of counter-claim, and the plaintiff does not reply thereto by interposing a plea in abatement,—that is to say, that the defendant ought not to have or maintain his counter-claim because the proper parties are not before the court,—the plaintiff must be governed by the same rules precisely as govern *205the defendant who, under like circumstances, fails to interpose this objection to a right of recovery. As the objection that the defendants have copartners who ought to be called upon, to respond jointly with them is a defense which must be specially alleged, so tlie corresponding objection to a defense to a counter-claim must likewise be alleged, which was not done in this case.

¶2The judgment should be reversed, and a new trial granted, costs to abide the event.

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