Zahralban v. Vicbar Construction Corp.

Plaintiff moves to strike defendant’s counterclaim.

In this action by the purchaser to rescind a contract to buy and sell real estate, defendant builder has interposed an answer consisting of a general denial, an affirmative defense and a counterclaim. The affirmative defense reads that ‘ defendant was and is entitled to retain the sum of $1,650 as liquidated damages.” The counterclaim seeks $5,000 as damages at law for the very same breach of contract, for which defendant has retained the $1,650 paid on account of the purchase price.

*551Plaintiffs contend that defendant may not retain the money…