Katz Underwear Co. v. Burns

Sewell, J.: The complaint in this action is for goods sold and delivered to the defendant. The answer starts out with an admission that the plaintiff is a corporation and the defendant a resident of Sullivan county, State of New York. Following this is a denial of “ each and every other allegation contained in said complaint, except as hereinafter admitted, qualified or explained.” The defendant then alleges as follows: “ Further answering said complaint and as a defense thereto, the defendant alleges that prior to the 24th day of August, 1915, he ordered from the above-named plaintiff certain goods, wares and merchandise consisting of a quantity of ladies’ shirt waists. That the goods were represented by the said plaintiff to be first class in every respect and to be extra good value for the prices quoted. * * * That as a matter of fact, they were not first class goods, were not extra good value at the prices quoted, and were of inferior quality and make, and were not of the value or class of goods ordered by this defendant. That the value of the goods not paid for was much less than the price charged for the same. Wherefore, defendant demands judgment that the complaint herein be dismissed with costs.” It is apparent that the denial does not put in issue any material allegations of the complaint. It- is equally apparent that the answer does not contain, as found by the Trial Term, “ an offset * * * well pleaded,” but only matters alleged as a defense. It is well settled that where a defendant insists upon a counterclaim it must be pleaded as such, and unless that is done it can be resorted to and used only as a defense. (Pratt & Whitney Co. v. Pneumatic Tool Co., 50 App. Div. 369; Bates v. Rosekrans, 37 N. Y. 409; DeGraaf v. Wyckoff, 118 id. 1.) I think, therefore, that the plaintiff was entitled to judgment under section 547 of the Code of Civil Procedure. That section provides that “ If either party is entitled to judgment upon the pleadings, the court may upon motion at any time after issue joined give judgment accordingly.” [489] It follows that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion for judgment granted, with ten dollars costs. All concurred, except Kellogg, P. J., who favored modification and affirmance as per opinion.