J. Rose & Co. v. Unity Stove Co. , 3 A.D.2d 829 ( 1957 )

It being conceded on the argument of this appeal that the defendant has paid the amount demanded in the complaint, the only remaining questions are whether the counterclaim is sufficient as a pleading and whether plaintiff is entitled to summary judgment dismissing the counterclaim. We find the counterclaim sufficient as a statement of a cause of action. We doubt that subdivision 3 of rule 113 of the Rules of Civil Practice was intended to encompass a cause of action for an alleged conspiracy in restraint of trade in violation of section 340 of the General Business Law or that such an action lends itself to a motion for summary judgment under rule 113. But without deciding that question, we conclude that plaintitff has not made a showing here which would warrant a summary disposition, despite the fact that defendant has made no counter showing and its charge of conspiracy is given little elaboration and substantiation in the pleading. Order unanimously modified so as to deny the motion to strike the counterclaim and to sever the counterclaim under section 262 of the Civil Practice Act and, as so modified, otherwise is affirmed, with costs to abide the event. Settle order on notice. Concur — Peck, P. J., Breitel, Botein, Rabin and Bergan, JJ. [3 Misc 2d 939.]