Dillaye v. Niles

4 Abb. Pr. 253

• Court: New York Supreme Court
• Decided: March 15, 1857
• Status: Published

Opinion

Davies, J.

—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. It is apparent that the defendant sets up no indebtedness of the plaintiff to him on which he could recover against him. He claims that True, the assignor of the plaintiff at the time of and prior to the assignment of the demand against the defendant, was indebted to the defendant in a sum sufficient to extinguish such claim. This is not a counter-claim. It is relied on as a payment of the claim. The defendant does not pretend to have a cross-demand against the plaintiff; but merely alleges matter, which, if true, shows that the plaintiff never had a cause of action against him. Such matter required no reply.

* (Davidson a. Remington, 12 How. Pr. R., 310.)

If, however, plaintiff desires to reply, he may do so, nunc pro tunc, on payment of $7 costs of opposing this motion.

See also the case of Ferrera a,. Depew, Ante, 131, where, in the New York Common Pleas an analogous answer was held demurrable.