Tannebaum v. Marsellus

Van Wyck, J. Two days after the expiration of tne time within which defendant had the right to amend, as of course, he applied for leave to serve a proposed amended answer, setting up a counterclaim, and was denied such permission by the order appealed from. Such applications, as a general rule, are usually granted, unless the amendment seeks to interpose some unconscionable defense, but a counterclaim recognized by the law cannot be so considered. Ho reason was assigned [352] for denying defendant’s application, and none is suggested by respondent’s counsel, except “ that it is simply matter of evidence and not of pleading,” and this is not sound, in view of the fact that the amended plea is amply broad enough to allow proof of just such facts as were' recognized as valid counterclaims in Hogan v. Schorb, 24 Wend. 458, which simply followed the rule as laid down in Rabone v. Williams, 7 T. R. 360, note, by Lord Mansfield, that “ where a factor dealing for a principal, but concealing the principal, delivers goods in his own name, the person contracting with him has a right to consider him to all intents and purposes as the principal; and though the real principal may appear and bring an action upon that contract against the purchaser of the goods, yet that purchaser may set off any claim he may have against the factor, in answer to the demand of the principal. This has been long settled.” The Kogan case is followed in Pratt v. Collins, 20 Hun, 126, and approved in Bliss v. Bliss, 7 Bosw. 339. The rules of pleading counterclaims as laid down by the Code do not in any way change the above rule of law. The defendant should have been permitted to interpose the amended answer upon payment of ten dollars, and the order denying his application is reversed, and permission is given him to serve same within six days, upon payment of ten dollars to plaintiff’s attorney. Fitzsimons, J., concurs. Ordered accordingly.