Prosser v. Maxon

Decided November 15, 1906

New York Supreme Court · decided 1906-11-15

<p>Pleading —Answer or plea — Set-off, counterclaim, etc.— Counterclaim must be pleaded as such.</p> <p>Pacts constituting a cause of action on contract in defendant’s favor, which might form a valid counterclaim in an action upon a promissory note, if pleaded as such, but not related to the cause of action alleged in the complaint, when stated only as a separate defense, following a general denial, are demurrable.</p>

Decided 1906-11-15

Giegerich, J.

¶1The matters contained in paragraphs 1 and 2 of the separate defense set up in the answer have no relation to the causes of action alleged in the complaint, and, therefore, are not available as a defense. They might constitute a valid counterclaim if so pleaded; but they have not' been pleaded as a counterclaim, nor even as a set-off. On the contrary, they are alleged as a defense simply, and the only relief demanded is that the complaint be dismissed. Demurrer sustained, with costs to the plaintiffs, and with leave to the defendant to amend within twenty days on payment of such costs.

¶2Demurrer sustained, with costs to the plaintiffs, with leave to defendant to amend within twenty days on payment of costs.