Opinion
November 27, 1951.
Appeal from Supreme Court, New York County.
In this action to recover damages of $13,500 for the alleged breach of a contract of employment, certain of the defendants have been granted leave to serve an amended answer incorporating among other things, three defenses and counterclaims in favor of one of the moving defendants, predicated upon slander and the malicious dissemination of false information by which damages totaling $250,000 is sought. Plaintiff has appealed from so much of the order as permits the interposition of the three defenses and counterclaims.
The motion for leave to serve the amended answer appears to have been brought about by plaintiff's refusal to accept less than $5,000 in settlement of its claim. It would seem, therefore, that the purpose of the counterclaims is to bring about settlement of plaintiff's action on defendants' terms. In such circumstances Special Term ought not to have permitted the defenses and counterclaims under attack to be pleaded, since a trial of the issues they raise with those created by the complaint would only tend to unduly prejudice a fair trial of plaintiff's cause of action.
Accordingly, the order appealed from should be modified by permitting service of the proposed amended answer from which paragraphs sixteenth to thirty-sixth, inclusive, have been deleted, and as so modified affirmed, with $20 costs and disbursements to the appellant. Settle order.
Peck, P.J., Glennon, Dore, Cohn and Callahan, JJ., concur.
Order unanimously modified by permitting service of the proposed amended answer from which paragraphs sixteenth to thirty-sixth, inclusive, have been deleted and, as so modified affirmed, with $20 costs and disbursements to the appellant. Settle order on notice.