Walker v. American Central Insurance
New York Court of Appeals
Appeal from judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon an order made January 15, 1893, which affirmed a judgment in favor of defendants entered upon a verdict. This was an action upon a policy of fire insurance issued by defendant.
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Appeal from judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon an order made January 15, 1893, which affirmed a judgment in favor of defendants entered upon a verdict. This was an action upon a policy of fire insurance issued by defendant. The complaint set up the issuing of the policy on February 1, 1891, insuring the property from that time for one year; that the property insured was damaged by fire to the full amount of insurance on February 6, 1891; that due proofs of loss were furnished and judgment for the amount of the policy was demanded…
1Opinion of the CourtFinch, J.
What is pleaded in the defendant’s answer as a counterclaim, and asserted to have become conclusive because no reply was served, is, in our judgment, simply and only a defense. Facts pleaded which controvert the plaintiff’s claim and serve merely to defeat it as a cause of action are inconsistent with the legal idea of a counterclaim, which is a separate and distinct cause of action, balancing in whole or in part that proved by the plaintiff. (Prouty v. Eaton, 41 Barb. 409.) It meets the latter, not only by a denial of it, or an attack upon its existence, but by opposing to it an equal or…
2Cases cited2 opinions
- Prouty v. EatonNew York Supreme Court · 1863
- Geer v. KissamNew York Court of Chancery · 1837
3Cited by28 opinions
- Susquehanna Steamship Co. v. A. O. Andersen & Co.New York Court of Appeals · 1925
- Hann v. Venetian Blind CorporationDistrict Court, S.D. California · 1936
- United States Fidelity & Guaranty Co. v. GoetzNew York Court of Appeals · 1941
- Zeman v. MikolasekNorth Dakota Supreme Court · 1947
- Ward v. Union Trust Co.Appellate Division of the Supreme Court of the State of New York · 1915
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