Thomas v. Loaners' Bank
The Superior Court of New York City
Appeal from an order. The motion below was to strike out a reply. The complaint alleged : “That on and prior to June 20, 1874, the plaintiff was the lawful owner, and entitled to the immediate possession of two single-stone diamond ear-rings, and one single-stone diamond ring, of the value of three thousand five hundred dollars; that the defendant became possessed of said diamonds, and being so in possession thereof, refused to deliver them to the plaintiff on demand duly…
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Appeal from an order. The motion below was to strike out a reply. The complaint alleged : “That on and prior to June 20, 1874, the plaintiff was the lawful owner, and entitled to the immediate possession of two single-stone diamond ear-rings, and one single-stone diamond ring, of the value of three thousand five hundred dollars; that the defendant became possessed of said diamonds, and being so in possession thereof, refused to deliver them to the plaintiff on demand duly made therefor, and then and there, before the commencement of this action, the said defendant wrongfully and unlawfully…
1Opinion of the Court
By the Court.—Monell, Ch. J.
Under the Code, the answer of the defendant may contain a statement of any new matter constituting a defense or counter■claim. If a counter-claim, it mast arise out of the transaction set forth in the complaint, when the action is not upon contract.
This action is not upon contract, and the counterclaim set up in the answer, is of a cause of action arising upon contract ;• so that without sufficient allegations that it arose out of the transactions set forth in the complaint, the matter alleged would not be the subject of counter-claim. There is no such allegation.…
2Cases cited2 opinions
- Brown v. BuckinghamNew York Supreme Court · 1860
- Livingston v. . MillerNew York Court of Appeals · 1853