Citation Numbers: 139 Misc. 629
Judges: Mullan
Filed Date: 1/21/1931
Status: Precedential
Modified Date: 1/12/2023
Motion to dismiss a counterclaim under rule 109 of the Rules of Civil Practice, for defects appearing on its face. Two grounds are urged: (1) That the counterclaim is not connected with the transaction set forth in the complaint; and (2) that the cause of action pleaded in the counterclaim did not exist when the action was brought. It nowhere appears on the face of the counterclaim when the action was brought, and, therefore, the second ground is not available under rule 109. (Cf. Avery v. Title Guarantee & Trust Co., 230 App. Div. 519.) It was there held that an attack upon a complaint could not be made under rule 106 (defects appearing on face) if based upon the ground that there was another action pending in the same court for the same relief when that action was begun, because the fact did not appear on the face of the complaint. In an action on contract, however, a counterclaim which pleads a contract must state that the cause
I grant this motion, with ten dollars costs, and while it seems impossible that defendants can cure the defect under either subdivision of the Civil Practice Act, section 266, I grant leave to amend within ten days, upon payment of costs. Order signed.