Eckert v. Gallien
Appellate Division of the Supreme Court of the State of New York
Appeal by the plaintiff, William H. Eckert, from an interlocutory judgment of the Supremo Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 28th day of September, 1898, upon the decision of the court rendered after a trial at the New York Trial Term overruling the plaintiff’s demurrer to a counterclaim contained in the defendant’s answer.
1Opinion of the Court
Ingraham, J.:
It was conceded in the court below that the action is in tort. It was so found by the court, and that conclusion is not challenged upon this appeal. The counterclaim demurred to alleges as a counterclaim a: cause of action on 'contract not arising out of the transaction alleged in the complaint, and thus, within section 501 of the Code, it is not properly pleaded as a counterclaim to the cause of action set up in the complaint. The demurrer was overruled, however, upon the ground that it is a nullity in that it is stated in the language of subdivision 4 of section 495 of the Code…
2Cases cited1 opinion
- Weeks v. O'BrienAppellate Division of the Supreme Court of the State of New York · 1898
3Cited by2 opinions
- Kneeland v. PennellAppellate Terms of the Supreme Court of New York · 1905
- Numan v. WolfAppellate Division of the Supreme Court of the State of New York · 1902