
    William Crompton, Appellant, v. William H. Seaich, Respondent.
    First Department,
    January 20, 1911.
    '¡Practice — pleading— failure to reply to counterclaim—motion for judgment on failure to reply,
    On a motion for judgment on counterclaims to which no reply or demurrer has been served, the complaint will bo deemed to state a good cause of action,
    
      Where the defendant in an action upon a contract counterclaims, upon an independent contract for a sum less than that demanded in the complaint, the court will not grant a motion for judgment on the counterclaim although the plaintiff has failed to reply thereto. The amount due as between the parties will be left to be determined upon trial.
    Appeal by the plaintiff, William Crompton, from an order of the Supreme Court, made at .the New York Special Term and .entered in the office of the clerk of the county of New York on the 7th day of December, 1910, granting the defendant’s, motion for judgment upon two counterclaims to which no reply or demurrer Was served; ,
    
      Joseph Fettretch of counsel [Fettretch, Silkcman & Seybel, attorneys], for the appellant.
    
      Graham Summer of counsel [Simpson, Thacher & Bartlett, attorneys], for the respondent.
   Clarke, J. :

The complaint demands' judgment for $30,000, with interest from the 2d day of June, 1908, alleged to be the reasonable value of services rendered to the defendant, at his request, in negotiations for the disposition of his business, plant and good will. • . '

The .answer sets up two counterclaims upon contract but in no way connected with the subject-matter of the plaintiff’s claim; first, upon a promissory note for $2,544,06, with interest from May 14,1907; second, for money loaned to the amount of $2,324.40, making a total of $4,868.46. No reply or demurrer was interposed to these counterclaims and the defendant moved for judgment upon the counterclaims under section 515 of the Code of Civil Procedure. Said motion was granted, and from the order directing judgment this appeal is taken.

Section 515 of the Code of Civil Procedure provides as follows : “ If the plaintiff fails to reply or demur to the counterclaim, the defendant may apply, upon notice, for judgment thereupon * *

By not replying to the counterclaims the plaintiff has admitted the causes of action therein set up. ■ He says that in truth and in fact the only defense that he has' to the counterclaim, for $4,868.46 therein alleged is his claim for $30,000 alleged in the complaint and that it would be an idle ceremony to reassert the said claim in a reply to the defendant’s counterclaims and that there is no warrant for such practice.

Section 514 provides that the reply must contain a general or specific denial of each material allegation of the counterclaim controverted by the plaintiff or of any knowledge or information thereof sufficient to form a belief; and it may set forth in ordinary and concise language, without repetition, new matter not inconsistent with the complaint constituting a defense to the counterclaim. But the plaintiff at bar cannot interpose a general or specific denial of any of the material allegations of either counterclaim and he has no new matter to se.t up constituting a defense' to the counterclaim and not inconsistent with the complaint without repetition.

Assuming, as we must upon this appeal, that the complaint sets up a good cause of action, if section 515 absolutely requires the granting of a judgment upon the counterclaims immediately upon the expiration of the time limited for the service of a reply, where no reply has been interposed, we have the anomaly of a final judgment.in an action, with the right to issue execution thereupon, with the main issue still undetermined, requiring a trial for the proper disposition thereof and the entry of a second judgment, perhaps years afterwards, in the same action.

We do not believe that such was the purpose or intent of- the provision cited. The interposition of counterclaims based upon contract was intended to permit the settlement at one time and in the same action of controversies of the same class pending between the parties, to the end that upon such settlement judgment should be entered for the balance ultimately found due in the adjustment of the several claims.

The practice followed in the case at bar might lead to injustice and cause the statutory provision, intended to secure an equitable adjustment of several independent controversies, to produce a highly inequitable result. In construing section 154 of the Code of Procedure as amended by chapter 392 of the Laws of 1863, the source of section 515'of the Code of Civil Procedure, Lott, J., in 1865, said in Kelsy v. Tremaine (29 How. Pr. 439): “ A defendant to avail himself of the benefit of that provision, must make out a case entitling him to a judgment for some amount. If he admits the plaintiff’s claim, or puts it in issue by his answer, he must, for the purposes of the motion under that section, be considered as conceding the plaintiff’s right of recovery to the amount of his claim. A counterclaim when admitted will not entitle the defendant to a judgment for the full amount thereof, unless the plaintiff fails to establish his cause of action, and lie can ' only recover the excess over the. plaintiff’s recovery where the plaintiff succeeds as to any part of his claim. The plaintiff by omitting to reply to a counterclaim, only admits that every material allegation constituting it {shall, for the purposes of the action, be taken as true.’ The effect of that admission is that the amount so counterclaimed may be deducted from the plaintiff’s claim, but it by no means concedes that the defendant shall be entitled to the recovery of the entire sum, irrespective of the demand made- by the complaint.”

It is claimed that Hunter v. Fiss (92 App. Div. 164) is a controlling authority in favor of the order appealed from. In that case the action was upon a promissorymote. By -way of counterclaim the defendant set up an indebtedness to an amount sufficient to extinguish the claim arising on the cause' of action set out in the complaint. The counterclaims were not replied to. A motion was made at Special Term “ for judgment dismissing the plaintiff’s complaint with costs upon the counterclaims contained in the defendant’s answer herein, or for such other and further relief as to the court may seem proper.” The Special Term denied the motion on the ground that the defendant was not entitled to an absolute dismissal of the complaint. This court said: “ He was right in so holding, but the notice of motion served by the defendant was sufficient to entitle him to a proper judgment on the pleadings.

# * * Under the terms of this notice of motion the defendant should have been, allowed to go on and take that proper judgment. He was not entitled to an absolute dismissal of the complaint because that would have resulted in a judgment on the merits, destroying the defendant’s liability on the promissory note and yet leaving all the counterclaims open to enforcement against-the plaintiff’s assignor. We think, therefore, the order should be reversed, * * * and, inasmuch as a proper judgment must be framed, the motion should be remitted to the Special Term for further consideration.”

In that case it will be seen that the counterclaims, which were admitted, completely wiped out the plaintiff’s claim, and, therefore, no matter what the plaintiff might have proved he could not have obtained a judgment, but the court held a dismissal of the complaint was not authorized, but only the entry of a proper judgment, and such a judgment, as is clearly indicated, as would finally dispose' of the whole controversy. This could only mean, an establishment of the plaintiff’s right to have applied against the defendant’s counterclaim, which he admitted, the amount claimed upon the note upon which he sued, and the entry of one final judgment for the balance. In the case at bar, however, the plaintiff’s claim is many times larger than the defendant’s admitted counterclaim, but the amount due thereon can only be determined upon a trial, and, therefore, no proper judgment can be entered until the determination of that controversy.

The motion for judgment, therefore, is premature, and as the notice was- confined to a demand for the entry of judgment, the order appealed from must be reversed, leaving to the final judgment in the action the awarding of the appropriate relief upon the concededly admitted counterclaims.

The order appealed from, therefore, should be reversed, with ten dollars costs and disbursements to the appellant, and the motion denied, with ten dollars costs.

IngeAham, P. J., Laüghlih, Scott and Millee, JJ., concurred.

Order reversed, with ten. dollars costs and disbursements, and motion denied, with ten dollars costs.  