Fettretch v. . McKay
Cases that cite this one
11 later published cases cite this decision.
- Hanover Insurance v. Alisa Construction Co. (New York Supreme Court 2007)
- Kane v. Kane (Appellate Division of the Supreme Court of New York 1990)
- Tri Terminal Corp. v. CITC Industries, Inc. (New York Supreme Court 1979)
- Edelman v. Edelman (New York Supreme Court 1976)
- Long v. Mutual Trust Life Insurance (Minn. 1934)
- Import Service Corp. v. Nichi Bei Kiito Kabushiki Kaisha (District Court, S.D. New York 1923)
- Cornell v. Bonsall (Appellate Division of the Supreme Court of New York 1917)
- Robert Gere Bank v. Inman (New York Supreme Court 1889)
- Demond v. Crary (U.S. Circuit Court for the District of Eastern New York 1880)
- Cooper v. Howe (New York Supreme Court 1879)
- Burroughs v. Garrison (New York Court of Common Pleas 1873)
This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.
Opinion of the Court
The Code of Procedure does not authorize the striking out of an answer or any part of an answer on the ground that it is frivolous. (Briggs v. Bergen, 23 N. Y., 162; Thompson v. Erie Railway Co., Ct. of App., May 18, 1871.) But we i^pt assume that this answer was not stricken out as frivolous. (23 N. Y., supra) There is no pretence that the counter-claim is sham. A sham pleading is a false pleading. There is nothing in the papers to show nor is it claimed that the counter-claim is false. 17or can this counterclaim be stricken out as an irrelevant defence. It is not a defence. There is a distinction between a counter-claim and a defence. (Code, § 149, sub. 2.) It is an affirmation of a cause of action against the plaintiff in the nature of a cross action, and upon which the defendant may have an affirmative judgment against the plaintiff. It is not liable to be stricken out on motion (Collins v. Swan, 7 Robt., 94), nor can *428 it be entirely stricken out under section 160. If there is a defect in the counter-claim in this case, it must be reached by demurrer or by motion under section 160 to make it more definite and certain. The orders appealed from, of Special and General Term, should be reversed, and motion denied, with costs to the appellant.
All concur except Beckham, J., not voting.
Order reversed,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.