Hatzel v. Hoffman House

2 A.D. 120, 37 N.Y.S. 598, 73 N.Y. St. Rep. 295

Opinion

Pratt, J.:

This appeal raises only one question, to wit: Whether the answer of the defendant set up a counterclaim and thus rendered it incumbent upon the plaintiffs to serve a reply.

The suit was instituted to recover for labor, material and services in furnishing an electric plant for the Hoffman House.

The answer material to this discussion contained the following, to wit:

“Fourth. That the plaintiffs entered into a contract with the owner of the premises known as the- Hoffman House, to fully and properly perfect and install electric lighting appliances and appurtenances, in and about said premises, and it was agreed in pursuance of said contract that a great portion of the work * * * for which the plaintiffs seek to recover * * * were charged for under and pursuant to said contract, and were paid for by said landlord. * * *

“ Defendant denies that said work and materials sued for herein were all extra and not included in the said contract, and avers that a great portion .of said work and materials were required to be done and furnished under said contract. * * *

“ Fifth. It was agreed by and between the plaintiffs and defendant that for the work, labor and services referred to in the complaint herein, the plaintiffs

Footnotes

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* should he entitled to a credit for so much of said work and materials as were omitted under said contract with the landlord of said premises and paid for by him, and to that extent the defendant should have credit accordingly; and for any deviation from the said contract, work and materials made at the request of the defendant, they should charge only about the cost of such changes to them; that this defendant is informed and believes the credits under that arrangement to which the defendant is entitled amount to in or about the sum of $700, less the amount demanded in the complaint.

“ Sixth. And defendant, answering said complaint, and by way of counterclaim to the cause of action set forth therein, alleges that by reason of said agreement and arrangement made by and between the plaintiffs and defendant, as hereinbefore in the fourth and fifth paragraphs of this complaint* set forth, the defendant became entitled to a credit of upwards of $722, which the defendant asks may be offset against any sum which it shall appear the plaintiffs are entitled to recover in this action.

“ Wherefore, defendant demands judgment that the complaint herein be dismissed, with costs, or that the said sum of seven hundred and twenty-two dollars, for which the defendant is entitled a* credit as aforesaid, may be offset against any sum which it may appear the plaintiffs are entitled to recover in this action.”

It seems plain that this pleading is a set-off and not a counterclaim. The defendant does not even say that the plaintiffs owe it any amount whatever, but the plea is really a. conclusion of law and of any facts constituting a counterclaim. The defendant simply says that it ought to be credited with a certain amount on the plaintiffs’ account.

To constitute a counterclaim the facts stated must amount to an independent cause of action; when they serve merely to defeat the plaintiff’s cause of action they amount to a defense, and not to a counterclaim. ( Walker v. American Central Ins. Co., 143 N. Y. 167.)

The matter was not in the prayer for relief designated as a counterclaim, but was claimed as an offset against the plaintiffs’ claim. (Equitable Life Ass. Co. v. Cuyler, 75 N. Y. 511; McElwee v. Trowbridge, 68 Hun, 28.)

After defendant had made a motion for judgment upon the pleadings, on the ground that a counterclaim had been pleaded and no reply served, which was dénied, the plaintiffs proved their case.

No evidence was given by defendant upon its set-off, and the court directed a verdict for the plaintiffs for the amount of their claim. ' '

The 'case was properly disposed of and the judgment must be " affirmed, with costs.

All concurred, except Cullen, J., not sitting, and Babtlett, J., who concurred in the result.

Judgment affirmed, with costs.

Sic.