Opinion
May, 1925.
Order dismissing counterclaim reversed upon the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. The counterclaim pleaded arose out of the same transaction alleged in the complaint as the foundation of plaintiffs' claim, and tends to diminish or defeat plaintiffs' recovery, if sustained, and hence was proper under section 266 of the Civil Practice Act. ( Laska v. Harris, 215 N.Y. 554; Isham v. Davidson, 52 id. 237; Vandervort v. Mink, 113 App. Div. 601; Rothschild v. Whitman, 132 N.Y. 472, 476.) The matters pleaded in paragraphs "seventh," "eleventh" and "thirteenth" of the counterclaim are also pertinent to the issue, and not frivolous, redundant or unnecessary in view of the allegations of the complaint, and hence should not be stricken out under rule 103 of the Rules of Civil Practice. Kelly, P.J., Jaycox, Manning, Young and Kapper, JJ., concur.