Schmitt v. Ohl-O-Matic Screw Products Inc.

10 Misc. 2d 851, 175 N.Y.S.2d 258, 1958 N.Y. Misc. LEXIS 3394

Opinion

George D. Ogden, J.

Plaintiff seeks to recover a judgment against defendant upon two causes of action alleged in Ms complaint. Defendant admits the first cause of action; denies the second; and, in its answer, has interposed an affirmative defense and a counterclaim to both of plaintiff’s causes of action; plaintiff has replied. All pleadings are verified.

It cannot be said that the counterclaim interposed by defendant does not tend to defeat or minimize the first, as well as the second, cause of action. It is my opinion that the counterclaim is not subject to attack under rule 113 of the Rules of Civil Practice, and that the action and counterclaim should be tried together (Dietz v. Glynne, 221 App. Div. 329).

Motion denied, with $10 costs of motion to defendant to abide the event.

Submit order.