Mark v. Prentice

The plaintiff moves for an order dismissing or striking out the first separate and distinct affirmative defense and counterclaim, and dismissing or striking out the second separate and distinct affirmative defense, setoff and counterclaim.

It appears that the defendant has combined his defenses and counterclaims. This may be done where the facts constitute both a defense and a counterclaim. (Hayden Co. v. Mitchell-Tappen Co., 139 Misc. 480; see Toll v. Friedman, 195 Misc 258 when the facts do not constitute both.)

I

As to the first separate and distinct affirmative defense and counterclaim, it…