Washington Trading Corp. v. Cornell Fabrics, Inc.

Appellate Division of the Supreme Court of New York

Washington Trading Corp. v. Cornell Fabrics, Inc.

244 A.D. 38, 278 N.Y.S. 375, 1935 N.Y. App. Div. LEXIS 5750

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 15, 1935

StatusPublished

This text of 244 A.D. 38 (Washington Trading Corp. v. Cornell Fabrics, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Washington Trading Corp. v. Cornell Fabrics, Inc., 244 A.D. 38, 278 N.Y.S. 375, 1935 N.Y. App. Div. LEXIS 5750 (N.Y. Ct. App. 1935).

Pincite

Opinion

McAvoy, J.

Plaintiff brought this action to recover an alleged balance of the purchase price of certain goods sold by the plaintiff to the defendant. The amended answer of the defendant Cornell Fabrics, Inc., alleges a second counterclaim and offset that the plaintiff obtained a warrant of attachment in this action, pursuant to which the sheriff made a levy on its bank account; that the warrant of attachment was thereafter vacated, and that, as a result of such warrant and levy, the credit rating of the defendant wasi mpaired to defendant’s damage in the sum of $50,000.

Plaintiff moved at Special Term to dismiss this second counterclaim, on the ground that it appears on the face thereof that it is not one which may be properly interposed in this action. The motion was denied.

The transaction set forth in the complaint is for goods sold and delivered by the plaintiff to the defendant. Defendant’s alleged cause of action in the counterclaim is not connected in any manner with the contract or the transaction involving the sale of the goods, nor is it “ connected with the subject of the action.” Nor is the counterclaim based on “ any other cause of action on contract.” The action alleged is for damages for a tort. The pleading fails [39]*39to conform to the requirements of section 266 of the Civil Practice Act for a valid Counterclaim.

The order should be reversed, with twenty dollars costs and disbursements, and the motion to dismiss the second counterclaim of the defendant, Cornell Fabrics, Inc., should be granted, with ten dollars costs.

Martin, P. J., O’Malley, Townlby and Glennon, Jj., concur.

Order reversed, with twenty dollars costs and cdisbursements, and motion granted, with ten dollars costs.

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McAvoy, J.

Plaintiff brought this action to recover an alleged balance of the purchase price of certain goods sold by the plaintiff to the defendant. The amended answer of the defendant Cornell Fabrics, Inc., alleges a second counterclaim and offset that the plaintiff obtained a warrant of attachment in this action, pursuant to which the sheriff made a levy on its bank account; that the warrant of attachment was thereafter vacated, and that, as a result of such warrant and levy, the credit rating of the defendant wasi mpaired to defendant’s damage in the sum of $50,000.

Plaintiff moved at Special Term to dismiss this second counterclaim, on the ground that it appears on the face thereof that it is not one which may be properly interposed in this action. The motion was denied.

The transaction set forth in the complaint is for goods sold and delivered by the plaintiff to the defendant. Defendant’s alleged cause of action in the counterclaim is not connected in any manner with the contract or the transaction involving the sale of the goods, nor is it “ connected with the subject of the action.” Nor is the counterclaim based on “ any other cause of action on contract.” The action alleged is for damages for a tort. The pleading fails [39]*39to conform to the requirements of section 266 of the Civil Practice Act for a valid Counterclaim.

The order should be reversed, with twenty dollars costs and disbursements, and the motion to dismiss the second counterclaim of the defendant, Cornell Fabrics, Inc., should be granted, with ten dollars costs.

Martin, P. J., O’Malley, Townlby and Glennon, Jj., concur.

Order reversed, with twenty dollars costs and cdisbursements, and motion granted, with ten dollars costs.

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Bluebook (online)

244 A.D. 38, 278 N.Y.S. 375, 1935 N.Y. App. Div. LEXIS 5750, Counsel Stack Legal Research, https://law.counselstack.com/opinion/washington-trading-corp-v-cornell-fabrics-inc-nyappdiv-1935.