Macloon v. Levy

The action is brought in equity to establish a lost instrument. The counterclaim on a promissory note alleged to have been made and delivered to defendant by plaintiff is, therefore, improperly interposed, since it does not “ tend to dimmish or defeat the plaintiff’s recovery ” as required by section 266 of the Civil Practice Act. The motion to dismiss the counterclaim is, therefore, granted. Defendant’s argument that the motion to dismiss the counterclaim must be denied, because the complaint fails to set forth a cause of action, is without merit, since a motion to dismiss or strike out a counterclaim does not search the record. (Fulton County G. & E. Co. v. Hudson River T. Co., 200 N. Y. 287; Hull v. Hull, 225 id. 342.) It is accordingly unnecessary to consider the sufficiency of the complaint.

Order signed.