10 Abb. Pr. 362 | N.Y. Sup. Ct. | 1860
Section153 of the Code contains this language“ The plaintiff may, in all eases, demur to an answer containing new matter, where upon its face it does not constitute a counter-claim or defence; and the plaintiff may demur to one or more of such defences or counter-claims, and reply to the residue of the counter-claims.” The Code does not au
The first defence.consists partly of denials, and partly of new matter. It is very in artificially drawn, and the defendants might have been required to separate the denials from the new matter (Code, § 150, last paragraph; rule 19, adopted in August, 1858), and make some parts of this defence more definite and certain, if the plaintiff had made a motion for that purpose. (Code, § 160.) But, by construing its allegations liberally, as the Code requires (§ 159), I am of the opinion such allegations constitute a defence to the first cause of action set out in the complaint. This defence is that, on the accounting mentioned in such cause of action, a sum less than $61.87, was found due the plaintiff from the defendants, which the defendants paid to the plaintiff before the commencement of this action; and that the sum of $61.87 was not found due from the defendants to the plaintiff. These facts constitute a complete defence to the first cause of action contained in the complaint.
. The new matter in the second defence was intended for a counter-claim; but I am of the opinion it does not constitute such a claim. A counter-claim must exist in favor of the defendant, and against the plaintiff, at the time the action is commenced. Under our former system of pleadings, a plea or notice of set-off always stated, “ that before and at the time of the commencement of this suit, the plaintiff was, and still is, indebted to the defendant,” &c. The second defence in this action does not show that the $7.50 therein mentioned was due or owing from the plaintiff to the defendant before or at the time the action was commenced. It commences with the allegation, “ that said plaintiff is indebted to said defendants,” and concludes with the words, “and that the said sum of $7.50 is now due and owing to said defendants from said plaintiff.” The defendants should have alleged that the $7.50 was due or owing to them from the plaintiff before and at the time of the commencement of the action. Rot having alleged this, the demurrer to the second defence was properly sustained.
As the plaintiff had judgment on both demurrers, it must be
Decision accordingly.
Present, Mason, Balcom, Campbell, and Parker, 33.
