
    Kevin Murphy, Appellant, v. Walter L. Appelli, Respondent.
    First Department,
    March 1, 1948.
    
      
      Abraham Wilson for appellant.
    
      Morris Gelbman of counsel (Waxstein & Gelbman, attorneys), for respondent.
   Per Curiam.

The matter pleaded in paragraphs Fifth to Ninth of the answer is not sustainable as a counterclaim or as a partial defense for ‘there are no ultimate facts of damage set forth which present an issue either by way of defense or counterclaim.

The facts alleged as a complete defense" and counterclaim in paragraphs Tenth to Fifteenth of the answer are clearly insufficient as a defense. In an action such as this to recover damages for fraud and deceit, it is not a defense for defendant to assert that he has sustained damage by reason of his later unlawful arrest and prosecution therefor at the instance of plaintiff. We think too that the matter set forth as a complete defense should not in the exercise of a fair discretion be permitted to stand as a counterclaim. There is nothing in common to be found in the plaintiff’s action for fraud and deceit and the counterclaim of defendant for damages for false arrest and malicious prosecution. Such a counterclaim, if permitted to remain, might prejudice the conduct of an orderly trial. “ The avoidance of a multiplicity of suits is much to be desired, but where, as here, the enforcement of such a rule might occasion prejudice to appellant’s substantial rights and might tend to confuse the jury, the divergent causes of action should be separately tried.” (Sporn v. Hudson Transit Lines, 265 App. Div. 360, 362.)

The order accordingly should be reversed, with $20 costs and disbursements to the appellant and the motion to dismiss the partial defense and counterclaim and the complete defense and counterclaim granted, with leave to defendant to serve an amended answer with respect to such partial defense and counterclaim, on payment of said costs, and without prejudice to an independent action by defendant for false arrest and malicious prosecution.

Dose, J. t\, Cohn, Callahan, Van Vooehis and Shientag, JJ., concur.

Order unanimously reversed, with $20 costs and disbursements to the appellant and the motion to dismiss the partial defense and counterclaim and the complete defense and counterclaim granted, with lea've to the defendant to serve an amended answer with respect to such partial defense and counterclaim, on payment of said costs, and without prejudice to an independent action by defendant for false arrest and malicious prosecution. Settle order on notice.  