190 N.E. 659 | NY | 1934
The action is on a promissory note in the principal amount of $5,300. The complaint allows a credit against this sum of $329.78, and claims a net balance of $4,970.22. The answer admits the essential allegations of the complaint, but pleads "for a separate and distinct defense and by way of setoff and counterclaim" the rendition by the defendant (who is an attorney) to the plaintiff of legal services of the value of $5,000. The answer does not demand affirmative judgment, but only a dismissal of the complaint.
The substantial question presented is whether the counterclaim is barred by failure to file a claim with the Superintendent of Banks pursuant to section 72 of the Banking Law (Cons. Laws, ch. 2). If not, an issue of fact is raised. The court at Special Term, in denying the motion for summary judgment, necessarily so held. The Appellate Division reversed only on the law on the ground that "the counterclaim interposed by the defendant is barred by the failure of the defendant to file his claim thereon with the Superintendent of Banks as required by the Banking Law."
Section
This court has held (Matter of Societa, etc., Di Savoic v.Broderick,
In the case of mutual debts it is only the balance which is the real or just sum owing by or to the insolvent. (Gerseta Corp.
v. Equitable Trust Co.,
The judgment of the Appellate Division should be reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division.
CRANE, LEHMAN, O'BRIEN, HUBBS and CROUCH, JJ., concur.
Judgment accordingly. *335