Barhyte v. Hughes
New York Supreme Court
APPEAL from a judgment entered at a special term. The action was for an assault and battery. The complaint was the ordinary complaint in such cases.
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APPEAL from a judgment entered at a special term. The action was for an assault and battery. The complaint was the ordinary complaint in such cases. The answer denied each and every allegation, and set up as a separate de- ■ fense, “ that the plaintiff, just before the time when the said defendant is alleged in said complaint to have assaulted the plaintiff, to wit: on or about the first day of August, in the year 1858, on the Eleventh avenue, between Thirty-eighth and .Thirty-ninth streets, in the city of Hew York, did, with' great force, make an unprovoked and violent assault upon this…
1Opinion of the Court
*321 By the Court,
Clerke, J.
This is an action for an assault and battery. The answer denies each and every allegation in the complaint, and sets up as a separate defense, “that the plaintiff just before the time when the defendant is alleged in said complaint to have assaulted the plaintiff, made an unprovoked and violent assault upon the defendant by beating, striking and kicking him, without cause or provocation.”
Supposing this matter to be properly alleged as a counterclaim, the question arising in this case is, whether a counterclaim is allowable in an action of tort, for a cause arising out…
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