Kurtz v. McGuire
The Superior Court of New York City
The complaint states a sale and delivery by the plaintiffs to the defendant of liquors, for cash, at an agreed price of $890.20, and claims a balance due of $208.06. The answer denied that he had received the quantity of liquors stated, or that they were worth, or that he agreed to pay, the'price named, and averred that they were worth about $200, and no more.
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The complaint states a sale and delivery by the plaintiffs to the defendant of liquors, for cash, at an agreed price of $890.20, and claims a balance due of $208.06. The answer denied that he had received the quantity of liquors stated, or that they were worth, or that he agreed to pay, the'price named, and averred that they were worth about $200, and no more. It then proceeds thus:— “ And this defendant further says, that on or about the 20th of October, 1856, the said plaintiffs, without the knowledge or consent of the defendant, took and appropriated to their own use eighty-seven and a…
1Opinion of the CourtBosworth, J.
An irrelevant defence, as well as an irrelevant answer may be stricken out on motion. (Code, section 152.) The fact that the plaintiffs wrongfully took and converted to their own use property of the defendant, constitutes a good cause of action. *661As a defence is irrelevant, because it cannot be made available in this action, it does not give a right of set-off. (2 R. S., 354, § 32, sub. 1.) It does not create a demand arising on contract.
It does not constitute a counter-claim, because it does not arise out of contract, nor out of the transaction set forth in the complaint, as the foundation of…
2Cited by10 opinions
- Clark v. Jeffersonville RailroadIndiana Supreme Court · 1873
- Merritt v. GouleyNew York Supreme Court · 1890
- Carpenter v. BellThe Superior Court of New York City · 1863
- Brugman v. BurrNebraska Supreme Court · 1890
- Lee Bank v. KuchingThe Superior Court of New York City · 1860
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