City of New York v. Alpha Contracting Corp.

Full title: CITY OF NEW YORK, Appellant, v. ALPHA CONTRACTING CORPORATION, Respondent

Court: Supreme Court, Appellate Term, First Department

Date published: Jun 23, 1944

182 Misc. 115 (N.Y. App. Term 1944)

49 N.Y.S.2d 609

Opinion

June 23, 1944.

Appeal from the City Court of the City of New York, New York County, PARELLA, J.

Ignatius M. Wilkinson, Corporation Counsel ( John C. Clancy and Saul A. Shames of counsel), for appellant.

Irwin H. Rosenberg and Herbert M. Rosenberg for respondent.

MEMORANDUM

Per Curiam.

The counterclaim interposed by defendant is barred by the six months' period of limitation contained in the contract entered into between the parties. Such limitation is to be considered on a parity with corresponding statutory provisions. ( Amex Asphalt Corp. v. City of New York, 263 A.D. 968, affd. 288 N.Y. 721.) The fact that the counterclaim arose out of the same contract upon which plaintiff's cause of action is predicated, will not rescue the counterclaim in view of the prohibition contained in section 61 of the Civil Practice Act. ( Fish v. Conley, 221 A.D. 609; Garben v. McKittrick, 225 A.D. 772. )

The order should be reversed, with ten dollars costs and disbursements, and motion granted.

HAMMER, SHIENTAG and EDER, JJ., concur.

Order reversed, etc.