Cooper v. Howe

23 N.Y. Sup. Ct. 502

• Court: New York Supreme Court
• Decided: January 15, 1879
• Status: Published

Opinion

Talcott, J.:

Tbis is an appeal from tbe order of the County Court of Monroe county, overruling tbe answer of the defendants as frivolous.

The action is upon contract to recover an indebtedness arising upon the sale of goods, wares and merchandise by tbe plaintiffs to tbe defendants. Tbe third answer of tbe defendants sets up what purports to be a counter-claim, in the nature of a set-off. Tbe allegations in regard to tbe alleged counter-claim are very imperfect, and doubtless bad on demurrer, but a counter-claim cannot be stricken out or disregarded as frivolous. If defectively alleged, it is to be met by a demurrer, or by a motion to make it more definite and certain. (Fettrech v. McKay, 47 N. Y., 426; Briggs v. Bergen, 23 id., 162.)

Tbe order in tbis case purports to overrule tbe whole answer as frivolous.

We think so much of tbe answer as purported to be set up by way of defense to tbe action was frivolous, but tbe order was too large, in embracing tbe counter-claim.

The order appealed from should be reversed, with ten dollars costs and disbursements.

!MulliN, P. J., and Smith, J., concurred.

Order appealed from reversed, with ten dollars costs and disbursements.