Walter v. Carroll

140 N.Y.S. 868

Opinion

BENEDICT, J.

This motion for judgment in favor of the defendant on her counterclaim because of plaintiff’s failure to reply thereto is premature. The defendant’s demand is much less in amount than that of the plaintiff, and the two causes of action are wholly discqnnected. Until the issues arising upon the complaint have been tried, it cannot be ascertained whether the defendant will be entitled to an af? firmative judgment against the plaintiff, or whether her admittedly valid claim will constitute merely an offset to plaintiff’s demand.

The motion must therefore be denied, without prejudice to renewal after the validity and amount of the plaintiff’s claim have been determined. Crompton v. Seaich, 142 App. Div. 431, 126 N. Y. Supp. 817; Id., 143 App. Div. 284, 128 N. Y, Supp. 586.