Diamond v. Polivnick , 270 A.D. 854 ( 1946 )

The action is to recover $24,000 allegedly overpaid by plaintiffs to defendant on the closing of a written agreement for the purchase of aE the issued stock of a realty corporation owned by defendant. The answer, in addition to a general denial, contains two separate. defenses and an equitable counterclaim for reformation of the agreement. Pursuant to section 443 of the Civil Practice Act, defendant moved for an order directing a separate and prior trial of the issues raised by the counterclaim and plaintiffs’ reply thereto. The motion was denied and defendant appeals. Order affirmed, with $10 costs and disbursements. The same facts alleged as a counterclaim are pleaded under the first defense and, if established on the trial, the complaint will have to be dismissed and this defendant will obtain relief just as fully as if the counterclaim were established and allowed. (Bennett v. Edison Electric Ill. Co., 164 N. Y. 131; Greenberg v. Prudential Ins. Co. of America, 246 App. Div. 727; 4 Carmody on New York Pleading and Practice, § 1176; see, also, Susquehanna S. S. Co. v. Andersen & Co., 239 N. Y. 285, 296.) Hagarty, Acting P. J., Johnston, Adel, Aldrich and Nolan, JJ., concur.