Moser v. Fieland

5 Misc. 2d 937, 158 N.Y.S.2d 1020, 1956 N.Y. Misc. LEXIS 1423

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 15, 1956
• Status: Published

Opinion

Per Curiam.

A counterclaim need not be related to the issues of the complaint. In accordance with the statute (Civ. Prac. Act, §§ 262, 266), a counterclaim may be any cause of action in favor of the defendant. The statute is to be given a liberal construction to effectuate its purpose to avoid multiplicity of suits and allow determination of all' controversies between litigants in one action. The only condition attached to its interposition is whether it can be conveniently and fairly determined in connection with the cause of action. (Nussbaum v. Sobel, 269 App. Div. 105.) Moreover, interposition of a counterclaim in a larger amount than the claim of the plaintiff precludes summary judgment to the plaintiff. (Plaut v. Plaut, 255 App. Div. 375.)

The judgment and order granting partial summary judgment and order granting plaintiff’s motion to strike defendant’s counterclaim should be reversed, with $10 costs, and motions denied. The order denying defendant’s cross motion should be affirmed.

Eder, Hecht and Tilzer, JJ., concur.

Judgment and order' reversed, etc.