Chamboret v. Cagney
The Superior Court of New York City
Appeal from an order made at Special Term, by Mr. Justice Jones, sustaining plaintiffs’ demurrer to the counterclaim set forth in the answer of the defendant.
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Appeal from an order made at Special Term, by Mr. Justice Jones, sustaining plaintiffs’ demurrer to the counterclaim set forth in the answer of the defendant. The complaint alleged as a cause of action that on September 28,1868, the defendant unlawfully and wrongfully took and carried away certain goods, chattels, household furniture, wearing apparel, and jewelry, the property of the plaintiffs, of the value of $4,170, and that he converted and disposed of the same to his own use to plaintiffs’ damage $5,000. The answer of the defendant contained a series of specific denials, putting in issue…
1Opinion of the Court
By the Court:
Freedman, J.
The facts pleaded and relied upon by the defendant as a counter-claim constitute a good cause of action in favor of the defendant against the plaintiffs. If greater certainty and definiteness are desired, plaintiffs’ remedy is by motion and not by demurrer. The real question, therefore, to be determined is, whether these facts can be pleaded as a counter-claim in this action, or whether the defendant is to be driven to a separate action.
The counter-claim is a creation of the Code, and since 1852 includes the defenses of set-off and recoupment as they were un*382derstood…
2Cases cited14 opinions
- Cushing v. Owners of the Ship John FraserSupreme Court of the United States · 1859
- Vassear v. . LivingstonNew York Court of Appeals · 1855
- Pattison v. RichardsNew York Supreme Court · 1856
- Barhyte v. HughesNew York Supreme Court · 1861
- Briggs v. BriggsNew York Supreme Court · 1855
9 more not listed; retrieve them via the Exa API.
3Cited by5 opinions
- Hall v. WerneyAppellate Division of the Supreme Court of the State of New York · 1897
- Van v. MaddenAppellate Division of the Supreme Court of the State of New York · 1909
- Mulberger v. KoenigWisconsin Supreme Court · 1885
- Coddington v. DunhamThe Superior Court of New York City · 1873
- Lehmair v. GriswoldThe Superior Court of New York City · 1875