Chamboret v. Cagney
The Superior Court of New York City
Appeal from an order sustaining a demurrer to a counter-claim in the answer. The action was brought by Louis and Eliza Chamboret, plaintiffs and respondents, against James Cagney, defendant and appellant.
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Appeal from an order sustaining a demurrer to a counter-claim in the answer. The action was brought by Louis and Eliza Chamboret, plaintiffs and respondents, against James Cagney, defendant and appellant. The complaint alleged as a cause of action, that on September 28, 1868, the defendant unlawfully and wrongfully took and carried away certain goods, chattels, household furniture, wearing apparel, and jewelry, the property of the plaintiffs, of the value of four thousand one hundred and seventy dollars, and that he converted and disposed of the same to his own use, to plaintiffs’ damage five…
1Opinion of the Court
By the Court.* —Freedman, J.
The facts pleaded *33and relied upon by the defendant as a counter-claim, constitute a good cause of action in favor of the defendant against the plaintiffs. If greater certainty and definiteness are desired, plaintiffs’ remedy is by motion, and not by demurrer. The real question, therefore, to be determined is, whether these facts can be pleaded as a counter-claim in this action, or whether the defendant is to be driven to a separate action.
The counter-claim is a creation of the Code, and, since 1852, includes the defenses of set-off and recoupment, as they were…
2Cases cited18 opinions
- Walter v. . BennettNew York Court of Appeals · 1857
- Vassear v. . LivingstonNew York Court of Appeals · 1855
- Pattison v. RichardsNew York Supreme Court · 1856
- Xenia Branch Bank v. LeeThe Superior Court of New York City · 1858
- Barhyte v. HughesNew York Supreme Court · 1861
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