Fett v. Greenstein

46 Misc. 574, 92 N.Y.S. 736

Opinion

Blanchard, J.

This is an appeal from an order denying a motion of the defendants to strike out a paragraph of the plaintiffs reply. The complaint sets forth a breach of contract of employment. The answer among other things sets up a counterclaim of $350 for money advanced. The plaintiff replies that in pursuance of the agreement set forth in the complaint, he rendered services to the defendants of the value of $225, and asks that such sum may be set off against any sum that may be found due the defendants on their counterclaim. The defendants moved to strike out this set-off, and from the order denying the said motion this appeal is taken.

The allegation in the reply is a new cause of action by the plaintiff against the defendants for work, labor and services performed amounting to the sum of $225. Practically, this is a counterclaim to a counterclaim and is unauthorized under section 514 of the Code of Civil Procedure. The remedy for the plaintiff on receipt of the answer setting up the counterclaim was to move for leave to amend the complaint. A case much in point is Fitzgerald v. Rightmeyer, 12 Misc. Rep. 186.

The order appealed from must he reversed, with costs and disbursements.

Scott and O’Gorman, JJ., concur.

Order reversed, with costs and disbursements.