Counter-Claim

A liberal practice introduced by the reformed codes of procedure in many of the United States, and comprehending Recoupment and Set-off, g. v., though broader than either. The New York code thus defines it: The counter-claim must tend, in, some way, to diminish or defeat the plaintiff's recovery, and must be one of the following causes of action against the plaintiff, or, in a proper case, against the person whom he represents, and in favor of the defendant, or of one or more defendants, between whom and the plaintiff a separate judgment may be had in the action: — 1. A cause of action arising out of the contract or transaction, set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action. 2. In an action on contract, any other cause of action on contract existing at the commencement of the action. N. Y. Code, 1889, § 501. See National Fire Ins. Co. v. Mc Kay, 21 N. Y. 191; Waddell v. Darling, 51 id. 327; Smith v. Hall, 67 id. 48; Elwell v. Skiddy, 77 id. 282; Ballou v. Ballou, 78 id. 325; Cook v. Jenkins, 79 id. 575; Coffin v. Mc Lean, 80 id. 560; Ward v. Craig, 87 id. 550; Clapp v. Wright, 21 Hun (N. Y.) 240; Dietrich v. Koch, 35 Wis. 618; Devries v. Warren, 82 N. C. 356; Howe Mach. Co. v. Reber, 66 Ind. 498; Brady v. Brennan, 25 Minn. 210. By such statutes when a counter-claim is established the defendant may recover in the same action the amount by which his claim exceeds that of the plaintiff. A question as to which the cases vary in result is the effect upon the jurisdiction when the counterclaim exceeds the limit of the court. Some courts hold that the jurisdiction is not ousted by reason of excess in the amount of the counter-claim; Howard Iron Works v. Elevating Co., 176 N. Y. 1, 68 N. E. 66; aliter, Haygood v. Boney, 43 S. C. 63, 20 S. E. 803; but it is said that the majority of the cases deny the right in such case to file the counter-claim; 17 Harv. L. Rev. 350 (citing Griswold v. Pieratt, 110 Cal. 259, 42 Pac. 820, and Almeida v. Sigerson, 20 Mo. 497), where that view is approved. A counter-claim is a matter which is capable of use as the basis of a judgment against of America v. Electric Signaling Co., 206 Fed. 295.

A claim presented by a defendant in opposition to or deduction from the claim of the plaintiff. A species of set-off or recoupment introduced by the codes of civil procedure in several of the states, of a broad and liberal character. A counter-claim must be one "existing in favor of a defendant and against a plaintiff, between whom a several judgment might be had in the action, and arising out of one of the following causes of action: (1) A cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of action; (2) in an action arising on contract, any other cause of action arising also on contract, and existing at the commencement of the action." Code Proc. N. Y. § 150. The term "counter-claim," of itself, imports a claim opposed to, or which qualifies, or at least in some degree affects, the plaintiff's cause of action. 35 Wis. 626. A counter-claim is an opposition claim, or demand of something due; a demand of something which of right belongs to the defendant, in opposition to the right of the plaintiff. 8 How. Pr. 122. A counter-claim is that which might have arisen out of, or could have had some connection with, the original transaction, in view of the parties, and which, at the time the contract was made, they could have intended might, in some event, give one party a claim against the other for compliance or non-compliance with its provisions. 79 Ind. 523, 524.