Van Ness v. Van Ness

The action is brought by plaintiff against the defendant, her former husband, to recover alimony accrued and unpaid under a judgment of divorce obtained by plaintiff in New Jersey, and to sequester the defendant’s property. The answer contains a counterclaim alleging that plaintiff wrongfully withholds chattels belonging to the defendant and asks judgment for the counterclaim for the ■ possession of the chattels or for damages in the event that possession cannot be given. The counterclaim finds no justification in the provisions of either subdivision of section 286 of the Civil Practice Act. It does not arise out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim and it is not connected with the subject of the action. Subdivision 1 is, therefore, inapplicable. Subdivision 2 applies only to a counterclaim sounding in “ contract ” and, therefore, does not avail the defendant. The motion to dismiss the counterclaim is accordingly granted. Order signed.