Fitzgerald v. Rightmeyer ( 1895 )

Herrick, J.

The complaint is for goods sold and delivered. The answer consists of a general denial, and of a counterclaim against the plaintiffs for the use of vehicles furnished to the plaintiffs.

The reply to the counterclaim consists of a denial, and also of a further additional claim, to that set forth in the complaint, for goods sold and delivered, and work, labor and services, being separate and distinct causes of action to that set up in the' complaint, but of the same nature.

And the motion is to strike out that portion of the reply which sets up separate and distinct claims for goods sold and delivered, and for work, labor and services, in opposition to the counterclaim in the defendant’s answer.

Practically, this is a counterclaim to a counterclaim, and is unauthorized by the Code. In our system of practice the only pleadings allowed are those designated in the Code of Civil Procedure.

The only reply authorized to a counterclaim is a denial thereof, or the pleading of new matter not inconsistent with that already set forth in the complaint, constituting a defense to the counterclaim.

A distinction has always been recognized between a defense and a counterclaim. Hew matter in a reply which is not inconsistent with the complaint, and which constitutes a separate and distinct cause of action against the defendant in the orderly and regular course of pleading, has no place in the reply, but should be embraced in the complaint; otherwise, no pleading being authorized in answer to a reply, we would have the case of a cause of action being alleged and prosecuted against a defendant to which he could make no answer, either to admit, deny or set up any affirmative defense to it.

It is unnecessary to refer to the ragged and irregular way of presenting the plaintiffs’ case upon the trial that would result from permitting this kind of pleading.

The motion is granted, with ten dollars costs.

Motion granted, with ten dollars costs.