Van Ness v. Van Ness

New York Supreme Court

Van Ness v. Van Ness

131 Misc. 587, 227 N.Y.S. 469, 1928 N.Y. Misc. LEXIS 745

DecidedMarch 13, 1928

StatusPublished

This text of 131 Misc. 587 (Van Ness v. Van Ness) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Van Ness v. Van Ness, 131 Misc. 587, 227 N.Y.S. 469, 1928 N.Y. Misc. LEXIS 745 (N.Y. Super. Ct. 1928).

Pincite

Opinion

Frankenthaler, J.

The action is brought by plaintiff against the defendant, her former husband, to recover alimony accrued and unpaid under a judgment of divorce obtained by plaintiff in New Jersey, and to sequester the defendant’s property. The answer contains a counterclaim alleging that plaintiff wrongfully withholds chattels belonging to the defendant and asks judgment for the counterclaim for the ■ possession of the chattels or for damages in the event that possession cannot be given. The counterclaim finds no justification in the provisions of either subdivision of section 286 of the Civil Practice Act. It does not arise out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim and it is not connected with the subject of the action. Subdivision 1 is, therefore, inapplicable. Subdivision 2 applies only to a counterclaim sounding in “ contract ” and, therefore, does not avail the defendant. The motion to dismiss the counterclaim is accordingly granted. Order signed.

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Frankenthaler, J.

The action is brought by plaintiff against the defendant, her former husband, to recover alimony accrued and unpaid under a judgment of divorce obtained by plaintiff in New Jersey, and to sequester the defendant’s property. The answer contains a counterclaim alleging that plaintiff wrongfully withholds chattels belonging to the defendant and asks judgment for the counterclaim for the ■ possession of the chattels or for damages in the event that possession cannot be given. The counterclaim finds no justification in the provisions of either subdivision of section 286 of the Civil Practice Act. It does not arise out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim and it is not connected with the subject of the action. Subdivision 1 is, therefore, inapplicable. Subdivision 2 applies only to a counterclaim sounding in “ contract ” and, therefore, does not avail the defendant. The motion to dismiss the counterclaim is accordingly granted. Order signed.

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Bluebook (online)

131 Misc. 587, 227 N.Y.S. 469, 1928 N.Y. Misc. LEXIS 745, Counsel Stack Legal Research, https://law.counselstack.com/opinion/van-ness-v-van-ness-nysupct-1928.