Weaver v. Bonnell , 37 N.Y.S. 212 ( 1896 )

Fitzsimons, J.

The following are the material allegations of the complaint and answer necessary for us to examine:

The complaint sets forth a sale and delivery of coal to the defendant of the value of $127.75; the answer alleges as follows:

“ Defendant further answering avers that since said Frank B. Mayhew ceased to be superintendent of said apartment house one Henry Smith has acted as his agent; that, as he is informed and believes, the coal furnished by this plaintiff has not been of the kind agreed to be furnished, but has been of an inferior quality, to wit, soft coal, and in consequence thereof defendant has sustained damage in the sum of three hundred dollars.

“ That the fact of the quality of the coal so furnished by plaintiff has only come to the knowledge of defendant since the death of Mr. H. Smith, which occurred about two months ago.

“ Defendant prays that the complaint may be dismissed and he have judgment for 1ns counterclaim of three hundred dollars and costs.”

The plaintiff demurred to said allegation on the ground that it failed to state facts sufficient to constitute a cause of action.

The demurrer was overruled.

The respondent contends that said allegation was not intended to constitute a counterclaim, but merely a defense.

We cannot understand how such an argument can be seriously made, because he evidently introduced matter therein alleged to constitute a counterclaim, and he so designates it.

So viewed, in our judgment it fails to state facts sufficient to constitute a cause of action, and the demurrer was proper and should have been sustained instead of overruled.

Judgment reversed and demurrer sustained, with leave to defendant to serve an amended answer upon payment of costs.

Conlan, J., concurs.

Judgment reversed and demurrer sustained, with leave to serve amended answer.