Eckert v. Gallien

O’Brien, J.

(dissenting):

Under section 501 of the Code of Civil Procedure, a counterclaim must be: (1) A cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim, or connected with the subject of the action, (2) In an action on contract, any other cause of action on contract, existing at the commencement of the action.

The complaint here is in tort, and as it appears that the counterclaims sought to be interposed do not arise out of the transaction set forth in the complaint, and are not connected with the subject of the action, they aré not proper counterclaims. The issue presented, however, relates to the form of the demurrer to each of the three counterclaims, the pleader using the exact language of subdivision 4, section 495 of the Code of Civil Procedure, that the counterclaims are “ not of the character specified in section 501 ” of the Code. By section 496, it is provided that “ A demurrer taken under the last section must distinctly specify the objections to the counterclaim; otherwise it may be disregarded. The mode of specifying the objections is the same as where a demurrer is taken to a complaint.” The mode of specifying an objection where a demurrer is taken to a complaint, is governed by section 490 of the Code, which provides that the objection must be distinctly stated, except in certain instances specified, when it may be stated in the language of the subdivision. It is thus pointed out that the objection must be specifically stated, except in cases where it is directly provided that the exact language of a subdivision may be xised. In subdivision 4, section 495 of the Code, there is nothing which frees the pleader from the necessity of distinctly specifying the objection to counterclaims sought to be interposed pursuant to section 501, but, on the contrary, it requires the objection to be distinctly stated.

If there were but one kind of counterclaim allowed under section 501 of the Code, then the use of the exact language of subdivision 4 of section 495 would seemingly be sufficient; but as there are enumerated in section 501 at least two different and distinct causes of action which may be availed of as counterclaims by a defendant, it is not a distinct specification of the objection to the counterclaim to employ merely the language of subdivision 4 of section 495, “ that . the counterclaim is not of the character specified in section 501.”

This question is not a new one and the proper practice has been -discussed in the case of Weeks v. O'Brien (20 Misc. Rep. 48) as follows: “ It is to be noted that there are two kinds of causes of .action which may be set up as a counterclaim against the plaintiff. It seems to me that a demurrer which does not specify on which of the grounds mentioned in section 501 it relies is within the prohibition of section 496 and should be disregarded. The object of a demurrer is to specify the reason why the pleading to which the .demurrer is taken is not a good pleading, and a demurrer which simply says that the counterclaims are not of the character specified in section 501 of the Code does not specify the defects in the counterclaim.”

Although this case was overruled on another ground, as may be seen by reference to the opinion on reversal in 25 Appellate Division, 208, we find in the statement of the learned judge writing the opinion of this court what may be regarded as a dictum in favor of the view that the objection should be expressed otherwise than in the language of subdivision 4 of section 495, as follows: “ It may be that ' this point might have been raised by a demurrer upon the ground that the counterclaims were not of the character specified in section 501 of the Code, the particular nature of the variance Toeing set forth”

That the general language of subdivision 4 of section 495 is not .sufficient in objecting to counterclaims is further shown by the fact that many decisions have been rendered wherein it has been held' that certain counterclaims, depending on their respective character, did or did not come under one or the other of the classifications named in section 501. It follows, therefore, that a statement that a-counterclaim was not “ of the character specified in section 501 would not distinctly and sufficiently point out the objection to such counterclaim as required by section 496 of the Code. .

Our attention has been called to the Special Term case of Grange v. Gilbert (10 Civ. Proc. Rep. 98) where, without any discussion of the question, a contrary rule to the one adopted in Weeks v. O'Brien (supra) was laid down. We think that the learned judge below was right in following the more recent case, holding that the. demurrer was bad in form and should be overruled.

The judgment should be accordingly affirmed, with costs.

Judgment reversed, with costs, and demurrer sustained, with costs, with leave to the defendant to amend within twenty days upon payment of costs in this c.ourt and in the court below.