143 N.Y. 544 | NY | 1894
This action is ejectment. The plaintiff claimed title under a devise in the will of his father, Daniel Dinan, and in his complaint alleged the devise as the source of his title. The defendant Hannah Coneys is the wife of the defendant William Coneys and the sister of the plaintiff. In her answer she denied that she unlawfully withheld possession of the premises, and alleged that by the will of Daniel Dinan the land devised to the plaintiff was charged with the payment to her of a legacy of three hundred dollars, which had not been paid, and she demanded judgment in her favor against the plaintiff for the amount of the legacy, with interest. The plaintiff replied, and, after admitting that the devise was subject to the charge, averred that the defendant had remained in the possession of the premises after the death of the testator, and received the rents and profits under an agreement with the plaintiff that they should be applied in payment of the legacy, and that the rents and profits received by her had been more than sufficient to satisfy it. The referee to whom the action was referred decided that the plaintiff was entitled to judgment for the possession of the premises, and the defendant Hannah Coneys to a judgment in her favor against the plaintiff for the amount of the legacy, with interest. Judgment was entered in conformity to the report. The plaintiff appealed. The General Term affirmed the judgment with a modification to the effect that the premises be sold to satisfy the legacy. The plaintiff then appealed to this court from the judgment rendered by the General Term.
The question presented is whether the legacy constituted a *547
counterclaim under the Code. If it was not available as a counterclaim, the plaintiff did not by replying to the answer waive his right to take the objection on the trial, nor was he compelled to demur in order to raise the question. (Smith v.Hall,
We think the original judgment against the plaintiff was not sanctioned by the law of counterclaim, and that the modification by the General Term, which turns the defense into an action in equity to enforce the charge, was a still further departure from the statute. While the statute of counterclaim ought to be liberally construed in the interest of peace and to suppress unnecessary litigation, it does not, we think, justify the application made in this case.
The judgments of the courts below should be reversed and a new trial ordered, with costs to abide the event.
All concur.
Judgments reversed.