Swiedler v. Bowery Savings Bank

245 A.D. 846

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 15, 1935
• Status: Published

Opinion

Order denying plaintiff’s motion, pursuant to rule 109 of the Rules of Civil Practice, to dismiss counterclaims alleged in the answer of defendant Swiedler, reversed on the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. The action is in equity for an adjudication that a balance of $462 deposited with the Bowery Savings Bank is the property of plaintiff, who is the father of the defendant [Herbert Swiedler]. The son’s counterclaims for boarding the plaintiff and for money loaned are based upon contracts which do not arise out of the transaction set forth in the complaint and are not connected with the subject of the action. They are not within the provisions of section 266 of the Civil Practice Act, and should be struck out. (See, also, Rose v. Rose, 233 App. Div. 368.) Service of plaintiff’s note of issue did not constitute a waiver of the right to make the motion to strike out the counterclaims. Lazansky, P. J., Young, Hagarty, Carswell and Scudder, JJ., concur.