Baum's Castorine Co. v. Thomas
New York Supreme Court
Appeal from Oswego county court. Action by Baum’s Castorine Company against Fred. A. Thomas, begun before a justice of the peace. The case was appealed to the county court, where plaintiff’s motion to strike out as sham the counterclaim in defendant’s answer, and to transfer the case from the trial calendar to the law calendar, was denied, and it appeals. Affirmed.
1Opinion of the Court
PARKER, J
The first question presented by this appeal is whether the counterclaim in defendant’s answer should have been stricken out as sham, under the provision of section 538 of the Code of Civil Procedure. That section allows a “sham answer or a sham defense” to be stricken out on motion. But a counterclaim is not a defense, as the word is used in relation to pleadings. In section 500 it is provided that an answer may contain a statement of new matter constituting a “defense or counterclaim,” thus making a clear distinction between the two. The same distinction is found in section 507, and…
2Cases cited3 opinions
- Harvey v. Van DykeNew York Supreme Court · 1883
- Moore v. TrimmerNew York Supreme Court · 1889
- Fuller v. BrierleyOneida County Court · 1867
3Cited by10 opinions
- H. C. King Motor Sales Corp. v. AllenAppellate Division of the Supreme Court of the State of New York · 1924
- Haaland v. MillerOregon Supreme Court · 1913
- Schlesinger v. WiseAppellate Division of the Supreme Court of the State of New York · 1905
- South Camden Trust Co. v. StiefelNew Jersey Court of Chancery · 1927
- Vermont Loan & Trust Co. v. BramelOregon Supreme Court · 1924
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