
    James Fettretch, Respondent, v. Frederick McKay, Appellant.
    A counter-claim cannot be stricken out as irrelevant, under section 166 of the Code.
    If there is any defect in the counter-claim, it must be reached by demurrer or by motion to make more definite and certain under the last clause of section 160.
    (Argued February 1, 1872;
    decided February 6, 1872.)
    Appeal from order of the General Term of the Supreme Court in the first judicial department, affirming an order of Special Term striking out a counter-claim set up in defendant’s answer as irrelevant.
    The complaint is to recover a balance claimed to be due for the purchase of certain premises in Mew York city, alleged to have been conveyed by plaintiff to defendant. The counter-claim alleged damages for the non-delivery of possession of the premises at the time agreed, and for the removal of certain fixtures which, by the terms of the agreement, were purchased with the property.
    
      H. C. Denison for appellant.
    A frivolous pleading cannot be stricken out on motion. (Briggs v. Bergen, 23 N. Y., 162.) The answer a valid counter-claim. (H. & C. S. B. R. R. Co. v. L. I. R. R. Co., 48 Barb., 355; Code, § 150.)
    
      B Fettretch for respondent.
    A claim for torts cannot be set up as a counter-claim. (Peters v. Stearns, 1 Hill, 86; Schubart v. Harteau, 34 Barb., 447.) The alleged taking of the property was a tort. (Mayor v. Parker Vein S. Co., 21 How. 289.) The alleged counter-claim does not state facts sufficient to constitute a cause of action. (Mayor, &c., v. Parker Vein Steamship Co., 21 How. Pr., 289; Matoon v. Baker, 24 How. Pr., 329; Davidson v. Remington, 12 id., 310; Spencer v. Babcock, 22 Barb., 335; Duncan v. Stanton, 30 id., 536 ; Cumming v. Morris, 3 Bosw., 572; Merritt v. Millard, 5 id., 653; Piser v. Stearns et al., 1 Hilt., 86. It was irrelevant and properly stricken out. (Cahill v. Palmer, 17 Abb., 196 ; R. & W. P. R. Co. v. Wetsel, 6 How., 68; Stewart v. Bowton, 6 How., 71; Blake v. Eldred, 18 How., 242; Herr v. Bamberg, 16 How., 128 ; Lockwood v. Salhenger, 18 Abb., 136; Carpenter v. West, 5 How., 53; Williams v. Hays, 1 Code R. N. S., 152.)
   Per Curiam.

The Code of Procedure does not authorize the striking out of an answer or any part of an answer on the ground that it is frivolous. (Briggs v. Bergen, 23 N. Y., 162; Thompson v. Erie Railway Co., Ct. of App., May 18, 1871.) But we must assume that this answer was not stricken out as frivolous. (23 N. Y., supra.) There is no pretence that the counter-claim is sham. A sham pleading is a false pleading. There is nothing in the papers to show nor is it claimed that the counter-claim is false. Hor can this counterclaim be stricken out as an irrelevant defence. It is not a defence. There is a distinction between a counter-claim and a defence. (Code, § 149, sub. 2.) It is an affirmation of a cause of action against the plaintiff in the nature of a cross action, and upon which the defendant may have an affirmative judgment against the plaintiff. It is not liable to be stricken out on motion (Collins v. Swan, 7 Robt., 94), nor can it be entirely stricken ont under section. 160. If there is a defect in the counter-claim in this case, it must be reached by demurrer or by motion under section 160 to make it more definite and certain. The orders appealed from, of Special and General Term, should be reversed, and motion denied, with costs to the appellant.

All concur except Peokham, J., not voting.

Order reversed.  