Maison De Marchands Industrielle Ltee-Industrial Merchants, Ltd. v. New York Silicate Book Slate Co., 13 F.R.D. 15

13 F.R.D. 15 | S.D.N.Y. | 1952

WEINFELD, District Judge.

With the exception of a dictum in Cornell v. Chase Brass & Copper Co., Inc., D.C., 48 F.Supp. 979, there is agreement that a plaintiff may plead a counterclaim in a reply. Downey v. Palmer, D.C., 31 F.Supp. 83; Mid-States Products Co. v. Commodity Credit Corp., D.C., 10 F.R.D. 592; Warren v. Indian Refining Co., D.C., 30 F.Supp. 281; Bethlehem Fabricators, Inc. v. John Bowen Co., D.C., 1 F.R.D. 274 ; 3 Moore’s Federal Practice, Second Edition, § 13.08, pp. 22-23.

These holdings are based on Rule 13(a), 28 U.S.C.A., which provides that “A pleading shall state as a counterclaim any claim which * * * the pleader has against any opposing party” and the language in Rule 18(a), “The plaintiff in his complaint or in a reply setting forth a counterclaim ¹ and the defendant in an answer setting forth a counterclaim * * Since the complaint, the defendant’s first counterclaim and the plaintiff’s counterclaim thereto all arise out of the same contract, the rule is especially appropriate here.

The defendant’s motion to strike the plaintiff’s counterclaim to the defendant’s first counterclaim is denied.

Settle order on notice.

1 . Emphasis supplied.