Opinion
October, 1918.
Merriam Tichnor, for plaintiffs.
Rockwood Lark, for defendants.
This is a motion for judgment for certain defendants for failure of plaintiffs to reply to an alleged counterclaim in the answer, or for a reference or writ of inquiry, as the court may deem proper, pursuant to section 515 of the Code of Civil Procedure and for a dismissal of the amended complaint, with costs, and for such other and further relief as to the court may seem proper.
The defendants on this motion and in their brief depend upon the allegations contained in the 13th paragraph of their answer. The amended complaint is criticized in the brief but not otherwise attacked on this motion. The action is brought to remove cloud on title and cancel of record a lease of 999 years, and adjudge plaintiffs entitled to an award of $6,125, made to the owners of the premises, in condemnation proceedings brought by the state of New York for a portion of said premises taken and acquired by the state.
Plaintiffs allege possession of the premises for at least one year prior to the beginning of the action and claim title in fee as heirs-at-law of Silas G. Whitney, deceased. They complain that certain drainage commissioners sold or attempted to sell the property on November 9, 1899, to one Edward C. Neil in proceedings against said Silas G. Whitney and executed and delivered to him, on that day, an intended certificate of such sale, which was supplemented by a second certificate intending to correct the first. That some twenty years after the first certificate one of the drainage commissioners executed and delivered to the administrators of the purchaser at said sale a paper purporting or intending to lease said premises to them for a period of 999 years from the date of sale.
Plaintiffs further allege that the proceedings referred to are null and void and will be so established by facts extrinsic of the record without alleging what these facts may be.
The defendants in the said thirteenth paragraph of their answer set out more fully and in detail the proceedings of the drainage commissioners, with the conclusion that they are legal, regular and binding against said claim and ask for the judgment mentioned in their notice of motion dismissing the complaint and awarding to them the $6,125 award with interest. They do not claim to own the fee.
I think that the defendants' allegation referred to is a denial of plaintiffs' claim and not a counterclaim, the plaintiffs were not required to reply thereto under sections 514 and 522 of the Code and that, therefore, this motion must be denied, with costs. Wade v. Strever, 166 N.Y. 251; Spier v. Hyde, 78 A.D. 151; Kirchner v. New Home Sewing Machine Co., 135 id. 182; Pattat v. Pattat, 93 id. 102; Davis Confectionery Co. v. Rochester German Insurance Co., 141 id. 909; Hunter v. Fiss, 92 id. 164; Babcock v. Clark, 93 id. 119, and three cases referred to on page 121.
Motion denied, with costs.