71 Misc. 436 | N.Y. Sup. Ct. | 1911
The defendant procured a judgment against the plaintiff for $600. The plaintiff paid the judgment.
In so far as the order of the court below attempted to sever the action, I think it was wholly unauthorized by law. Certainly no support for the action taken can be derived from section 511 of the Code of Civil Procedure. The application of that section is limited to cases where the pleadings admit “ part of plaintiff’s claim to be just ” and has no relation to a case where the answer pleads a counterclaim for a greater sum than it admits to be due the plaintiff. It is true that the only issue which remains to be litigated is that raised by the plaintiff’s reply to the counterclaim. Kor do I think that the plaintiff oan be held to have waived any right by replying. A failure to .reply would have conceded the defendant’s right to judgment upon the counterclaim. Code Civ. Pro., § 515. When the defendant pleaded the counterclaim the only alternative open to the plaintiff was to demur, reply or offer to' compromise under section 739 of the Code. By serving a reply the plaintiff selected the proper method of putting the facts alleged in the counterclaim in issue. Fulton County Gas & El. Co. v. Hudson River Tel. Co., 200 N. Y. 287.
Although in view of the admission of the cause of action
In my opinion the judgment and order appealed from should be reversed, with costs, and the motion should be denied, with ten dollars costs.
Bijur, J., concurs; Lehman, J., concurs in result.
Judgment and order reversed.