Amy Corp. v. Wendt , 277 A.D.2d 1088 ( 1950 )

Order affirmed, with $10 costs and disbursements. Memorandum: The cause of action alleged in the answer against the defendant-appellant is erroneously labeled as a counterclaim. However, it does not state an affirmative cause of action against the defendant-appellant which should not be stricken on motion. When the facts are developed at the trial, if the plaintiff is successful, the court may then determine whether or not defendants-respondents are entitled to the relief asked for against the defendant-appellant. All concur. (Appeal from an order denying a motion to strike out part of an answer which asked affirmative relief against a codefendant.) Present — Taylor, P. J., McCurn, Vaughan, Kimball and Piper, JJ.