101 N.J. Eq. 430 | N.J. Ct. of Ch. | 1927
This bill is by three tenants in common against the fourth for contribution of his share of the expenditures for interest, taxes and maintenance of lands, per his promise. The defendant filed a counter-claim asking for a partition of the lands, and the complainant moves to strike it out.
Under rule 70 of this court, "any matter, being the proper subject of a cross-bill under the existing practice, may be *431
set up by counter-claim." The rule introduced into our practice the code term "counter-claim" to take the place of its esteemed but old-fashioned ancestor the "cross-bill." The change was purely of terminology, and, as our court of errors and appeals said in McAnarney v. Lembeck,
The defendant concedes that his counter-claim could not be maintained when we called the cross-action a cross-bill, but he contends that it is permissible under rule 28, which reads: "Subject to the provisions of other rules herein contained, a defendant may counter-claim or set-off any cause of action against the complainant. He may, and when required by the court shall, issue subpoena against any third party necessary to be brought in; but in the discretion of the court, separate hearings may be ordered; or if the counter-claim cannot be conveniently disposed of in the pending action, the court may strike it out." He intimates that the court of errors and appeals, in deciding the case just cited, overlooked *432 the rule, and he argues, in effect, that by virtue of its provision any and all unrelated and independent causes of action against the complainant may now be the subject of a counter-claim or set-off. Carried to its extreme that would permit a wife to ask for support in her husband's suit to decree a resulting trust in lands held by her, or allow an action for damages for assault and battery as an offset to a foreclosure suit. The context of the rule does not permit the latitude of construction claimed for it. In terms and in effect it is circumscribed by, consistent with and subject to the provisions of rule 70. The rule invoked, as to counter-claims, was not intended to allow alien issues, nor other than those that could be tendered by a cross-bill to be pleaded, and as to set-offs, only those that may discharge or reduce the complainant's demand. Neither of the rules has the effect of substantially altering the then existing practice.
The counter-claim will be dismissed.