Stewart v. Travis
New York Supreme Court
This was a motion to strike out the 3d, 4th, 5th, 6th, and 7th divisions «of the reply of the plaintiff. The complaint contained eight counts, the substance of which was as follows:—1st. For work and labor done and performed by plaintiff for defendants, before Dec. 1, 1853, at the request of defendants; and it alleged that those services were worth $5,000. 2d.
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This was a motion to strike out the 3d, 4th, 5th, 6th, and 7th divisions «of the reply of the plaintiff. The complaint contained eight counts, the substance of which was as follows:—1st. For work and labor done and performed by plaintiff for defendants, before Dec. 1, 1853, at the request of defendants; and it alleged that those services were worth $5,000. 2d. For money paid, laid out, and expended for the defendants, at their request, in the performance of such labor, to the sum of $5,000. 3d. And for materials furnished in doing said work, to the value of $5,000. 4th. For money lent and…
1Opinion of the Court
Hand, Justice.
Mr. Chitty says, to a plea of set-off on simple .contract, the plaintiff may reply any matter which a defendant in an action might plead. (1 Chit. PI. 502.) The replication in this case, however, is novel pleading; what, under the Code, may be considered a reply of a counter-claim to a counter-claim; for the former is to be applied in extinguishment of the latter, that is, by way of .counter set-off, or one claim against another, without reference to those mentioned in the complaint. It is not, therefore, properly a new assignment; the object of which is said to be., to make…
2Cited by1 opinion
- Goossen v. GoossenNew York Court of Common Pleas · 1895