
    (92 Hun, 1.)
    BAUM’S CASTORINE CO. v. THOMAS.
    (Supreme Court, General Term, Fourth Department.
    December, 1895.)
    1. Sham Answer&emdash;Counterclaim.
    A counterclaim in an answer cannot be stricken out as sham under Code Civ. Proc. § 538, allowing a “sham answer or a sham defense” to be stricken out.
    2. Appeal prom Justice’s Court&emdash;New Trial.
    Code Civ. Proc. § 3008, provides that when, in an action brought in a justice’s court, judgment for more than 850 is demanded in either pleading, appellant shall be entitled to a new trial, if in his notice of appeal he demands one. Held that, where the answer in an action in justice’s court contains a counterclaim sufficient and proper on its face, the question whether it was false in fact, and pleaded for the mere purpose of obtaining a new trial on appeal, could not be tried on motion and affidavits in the county court, on appeal thereto.
    Appeal from Oswego county court.
    Action by Baum’s Castorine Company against Fred. A. Thomas, begun before a justice of the peace. The case was appealed to the county court, where plaintiff’s motion to strike out as sham the counterclaim in defendant’s answer, and to transfer the case from the trial calendar to the law calendar, was denied, and it appeals. Affirmed.
    O. M. Reilly, for appellant.
    C. I. Miller, for respondent.
   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 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 counterclaim is clearly demurrable, as in Denniston v. Trimmer, 27 Hun, 393, and in Moore v. Trimmer

(Sup.) 6 N. Y. Supp. 430, or when the action is such that a counter-claim 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 printing disbursements against the appellant.

Order affirmed, with $10 costs and disbursements. All concur.  