Gulf v. City of New York

Order, insofar as it denies plaintiff’s motion to dismiss the counterclaim, unanimously modified, with $20 costs and disbursements to the appellant, so as to dismiss the counterclaim upon the ground that it is not properly interposed in the action inasmuch as it fails to allege a presently existing cause of action (Bates V. 55 and 57 East 65th Street Corporation, 249 App. Div. 119; 3 Carmody on New York Pleading and Practice, § 996.) Section 266 of the Civil Practice Act does not alter this requirement. Settle order on notice. Present — Martin, P. J., Cohn, Callahan and Van Yoorhis, JJ. [188 Misc. 279.] [See 272 App. Div. 793.]