12 N.Y.S. 936 | N.Y. Sup. Ct. | 1891
Appellant’s answer set up new matter, and, under the answer, he sought to establish new and' independent orders given to the plaintiff, accepted by the plaintiff; a failure to perform in accordance-with the orders and acceptances, and, by reason of the breach, to be allowed such prospective profits as would have come to him in the event of a fulfillment of the orders. Such new matter constituted a counter-claim. Wilder v. Boynton, 63 Barb. 547. Assuming that such new matter constitutes a cause of action in favor of the defendant, and that equitably and justly he was entitled to recover, by reason of such new matter, damages from the state, the question here presented is whether or no such recovery or allowance can be had in this action. If the plaintiff had not commenced this action, it is very clear and well settled by an unbroken line of authorities that the defendant