Carpenter v. Manhattan Life Insurance
New York Supreme Court
Appeal from a judgment in favor of tbe plaintiff, entered upon ■tbe trial of tbis action by tbe court without a jury. Tbe action was brought to recover damages for an alleged conversion by tbe defendant of certain wood belonging to tbe plaintiff. 'The defendant, after denying tbe plaintiff’s ownership, set up the following counter-claim: “ First. — That on tbe 28th day of September, 1811, one George ~W. Markham, then tbe owner in fee of the premises mentioned in the…
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Appeal from a judgment in favor of tbe plaintiff, entered upon ■tbe trial of tbis action by tbe court without a jury. Tbe action was brought to recover damages for an alleged conversion by tbe defendant of certain wood belonging to tbe plaintiff. 'The defendant, after denying tbe plaintiff’s ownership, set up the following counter-claim: “ First. — That on tbe 28th day of September, 1811, one George ~W. Markham, then tbe owner in fee of the premises mentioned in the complaint, executed and delivered to the defendant a bond, and with Emily, his wife, a mortgage on the said premises to secure…
1Opinion of the Court
Gilbert, J. :
In Hammond v. Terry (3 Lans., 188), this court held, adopting the decision in Ayres v. O'Farrell (10 Bosw., 147), that a reply to a counter-claim operated as a waiver of an objection, that the same was not allowable. But the Court of Appeals have since expressed a contrary opinion, without, however, referring to these cases. (Smith v. Hall, 67 N. Y., 51.)
Assuming that the plaintiff’s reply was not a waiver, the question remains whether the facts alleged constituted a proper subject •of a counter-claim. The action is one to recover damages for the conversion of sixty-ñve cords of…
2Cases cited6 opinions
- Glen & Hall Manufacturing Co. v. HallCommission of Appeals · 1874
- Van Pelt v. . McGrawNew York Court of Appeals · 1850
- Gardner v. HearttNew York Supreme Court · 1846
- Smith v. . HallNew York Court of Appeals · 1876
- Ayres v. O'FarrellThe Superior Court of New York City · 1863
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