Opinion
January 8, 1931.
Newmark Miller, for the plaintiff.
Ashley Foulds, for the defendant.
Motion by plaintiff, under subdivisions 5 and 6 of rule 109 of the Rules of Civil Practice, to strike out the third, fourth and fifth separate and distinct defenses and counterclaims contained in answer. A defense equivalent to or provable under a general denial is not demurrable and will not be stricken out because the facts alleged therein might be proved under a general denial. ( Staten Island Midland R. Co. v. Hinchliffe, 170 N.Y. 473.) There is no impropriety in combining a defense and a counterclaim where it is claimed that the same facts constitute both. ( De Witt v. New York Herald Co., 196 A.D. 417; Goelet v. Goldstein, 229 id. 456 [1st Dept. May, 1930].) When designated a counterclaim a reply is required for a denial of its allegations. (Civ. Prac. Act, § 272.) Section 262 of the Civil Practice Act provides: "A defendant may set forth in his answer as many defenses or counterclaims, or both, as he has, whether they are such as were formerly denominated legal or equitable." Section 266 of the Civil Practice Act states: "A counterclaim * * * must tend to diminish or defeat the plaintiff's recovery." Our present counterclaim includes both setoff and recoupment. I consider the allegations now criticized are sufficient as a matter of law both as defenses and as counterclaims.
Motion is in all respects denied, with ten dollars costs. Plaintiff shall have until January 19, 1931, to serve its reply, if any. Order signed.