Kurtz v. McGuire

5 Duer 660

Opinion

Bosworth, J.

An irrelevant defence, as well as an irrelevant answer may be stricken out on motion. (Code, section 152.) The fact that the plaintiffs wrongfully took and converted to their own use property of the defendant, constitutes a good cause of action. As a defence is irrelevant, because it cannot be made available in this action, it does not give a right of set-off. (2 R. S., 354, § 32, sub. 1.) It does not create a demand arising on contract.

It does not constitute a counter-claim, because it does not arise out of contract, nor out of the transaction set forth in the complaint, as the foundation of the plaintiffs’ claim, nor is it connected with the subject of their action. The motion must be granted.