95 N.Y.S. 36 | N.Y. Sup. Ct. | 1904
The demurrer to the alleged counterclaim set forth in paragraphs “eleventh” to “seventeenth” (both inclusive) of the answer of the defendant, Charles' Ward Hall, seems to me to be well founded. The defendant, in his counterclaim, alleges that plaintiff stipulated in its contract for the installation of the elevators which form the subject-matter of the controversy between the parties to defend at its own costs and expenses all suits that might be instituted against the defendants, or either of them, for an infringement of any patent or patents by reason of the use of any apparatus, mechanism, or device furnished or employed by the plaintiff in the installation of said elevators, and to pay any recovery that might be had in said suits; that four separate suits now pending and at issue and unsettled have been brought against the defendant “to recover damages for alleged infringements consisting in the use of certain machinery, apparatus and devices furnished and used by plaintiff in the installation or part installation of said elevators.” There is no allegation of any request of plaintiff to defend said suits, nor of a refusal to defend, nor does the defendant allege that said suits are not being defended by plaintiff, nor that he has as yet incurred or been put to any expense in or about said suits. It requires no citation of authorities for the proposition that a counterclaim, to be available, must set forth a present, subsisting cause of action against the plaintiff in favor of the defendant. The attempted counterclaim clearly states no cause of action, and is premature.
Defendant, however, challenges the sufficiency of plaintiff’s complaint because of its failure to allege that the plaintiff, a foreign corporation, was authorized to transact business in this state pursuant to the' statutes thereto applicable, and relies upon Welsbach v. Norwich Gas & Elec. Co., 96 App. Div. 52, 89 N. Y. Supp. 284, in support of his contention. Before considering the effect of that case, it may be well to bear in mind that on demurrer to an answer for insufficiency an attack upon the complaint may be made because of its failure to state facts sufficient to constitute a cause of action. Baxter v. McDonnell, 154 N. Y. 436, 48 N. E. 816, citing People, etc., v. Booth, 32 N. Y. 397, and other cases. The infirmity in the complaint must be one of substance. “A demurrer searches the record for the first fault in pleading, and reaches back to con
As the substance of the complaint cannot be successfully attacked, and as the defenses to which the demurrer has been interposed are clearly insufficient, the demurrer must be sustained, with costs, with leave to defendant to plead anew, if he so elects, upon the payment of costs.