
    Baum’s Castorine Company, App’lt, v. Fred. A. Thomas, Resp’t.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed December, 1895.)
    
    1. Pleading—Counterclaim—Sham.
    A counterclaim cannot be stricken out as sham under section 538 of the Code.
    2. Appeal—Justice’s court—New trial.
    When a counterclaim is sufficient and proper upon its face, though it may be false in fact and pleaded for the mere purpose of obtaining a new trial on appeal, such question will not be tried upon affidavits in the county court.
    Appeal from an order denying plaintiff’s motion to strike out as sham the counterclaim in defendant’s answer and to transfer the case from the trial to the law calendar.
    O. M. Reilly for app’lt; C. I. Miller, for resp’t.
   PARKER J.

The first question presented by this appeal is whether the counterclaim in defendant’s answer should have been stricken out as sham, under the provision of section 538 of the Code of Civil Procedure. That section allows a “sham answer or a sham defense” to be stricken out on motion. But a counterclaim is not a defense, as the word is used in relation to pleadings. In section 500 it is provided that an answer may contain a statement of new matter constituting a “defense or counterclaim,” thus making a clear distinction between the two. The same distinction is found in section 507, and the very definition of a “counterclaim,” as given in section 501, shows that it is not included within the term “defense.” For this reason it has been held that a counterclaim could not be stricken out as sham under section 152 of the Code of Civil Procedure, which embodied substantially the same provisions as are now contained in section 538 of the Code of Civil Procedure. Collins v. Suau, 7 Rob. (N. Y.) 94; Fettretch v. McKay, 47 N. Y. 427.

The next question presented is whether the action should not have been transferred from the trial calendar to the law calendar, and a new trial denied to the defendant in the county court. It has been held that when a counterlaim is clearly demurrable, as in Denniston v. Trimmer, 27 Hun, 393, and in Moore v. Trimmer, 23 St. Rep. 2, or when the action is such that a counterclaim is not permitted in it, as in Harvey v. Van Dyke, 66 How. Prac. 396, and in Hinkley v. Railroad Co., 42 Hun, 282, it does not warrant a new trial in the county court; and that a motion to transfer the case from the trial calendar to the law calendar is proper practice, and should be granted. Those cases, however, do not reach the question here presented. But in Fuller v. Brierley, 36 How. Prac. 47, and in Thompson v. Pine, 5 Hun, 647, it is held that when the counterclaim is sufficient and proper upon its face, although it may be false in fact, and pleaded for the mere purpose of obtaining a new trial on appeal, that question will not be tried upon affidavits in the county court. The Code of Civil Procedure (section 3068) provides that whenever, in an action brought in a justice’s court, judgment for more than $50 is demanded in either pleading, the appellant shall be entitled to'a new trial, if in his notice of appeal he demands one. Here,-in plain language, is a strict right given to either party; and, unless it appears that the counterclaim is an improper and unwarranted pleading in the action, that effect should be given to it which the statute so plainly directs. It is true, that, under such a rule, the right so given may sometimes be abused, but" so would the practice allowing the truthfulness and good faith of a counterclaim to be assailed by motion and upon affidavits in the county court. We conclude that the rule adopted by the court in Thompson v. Pine, above cited, is the proper one, and we are not disposed to differ from it. The order of the county court is correct, and should be affirmed, with $10 costs and disbursements against the appellant.

Order affirmed, with $10 costs and disbursements.

All concur.  