
    The Niagara Falls Cider and Vinegar Company, Pl'ff, v. Lewis Knell, Def't.
    
      (Superior Court of Buffalo, Special Term,
    
    
      Filed February 2, 1891.
    
    1. Pleading—Amended answer—When stricken out.
    The payee of a note brought an action against the maker, alleging that the note was due and unpaid. The answer did not deny the making of the note, but alleged that plaintiff delivered to defendant a quantity of cider which was not to be paid for until sold, and that until then the title was to remain in the plaintiff; that it had not been sold, and that there was nothing due plaintiff on the note, as it was delivered to him as an accommodation, and was not to be paid unless the cider was sold. Defendant served an amended answer, in substance the same as the original, except that it alleges, by way of set-off or recoupment, that owing to plaintiff's delay in refusing to take back the eider he has become indebted to defendant, by way of storage, in the sum of sixty dollars. Held, that no new cause of action was set up by the amended answer, and that the counterclaim could not be maintained as a matter of law, and that it wras for the purpose of delay, and would be stricken out under § 538 of the Code Civ. Pro,
    3. Contract—Goods on sale—When seller liable for storage.
    In a contract, where the property is to remain with the prospective buyer until such time as he shall sell it before he is liable to pay, and in the meantime the title remaining in the seller, the seller is entitled to a reasonable time after notice to remove his property before there is any liability to the purchaser for storage.
    Motion by the plaintiff to strike out the defendant’s amended answer.
    Wm. C. Fitch, for pl’ff; O. C. DeWitt, for def’t.
   Titus, J.

—The complaint alleges the giving of a note by the defendant, on August 19, 1890, to the plaintiff for ninety-eight dollars, payable in two months from date; that the note was not paid at maturity, and that the whole amount is now due.

The answer does not deny the making of the note, but alleges that the plaintiff delivered to him a quantity of cider under the agreement that he was to pay the plaintiff when the cider was sold, and in the meantime the defendant was to store and take care of the cider until it was sold, and that the title should remain in the plaintiff; that the cider has not been sold, and, therefore, nothing is due the plaintiff.

It is further claimed that the note was given for the accommodation of the plaintiff, and was not to be paid unless he sold the cider, which he alleges he has not done.

The amended answer of the defendant is in substance the same as the original answer down to the sixth paragraph, in which the defendant alleges, by way of “set off or recoupment,” that owing to the plaintiff’s delay in refusing to take back the cider, the plaintiff has become indebted to him in the sum of sixty dollars for storing and caring for it while it remained in the possession of the defendant, and demands judgment against the plaintiff for that sum, with costs.

The plaintiff’s counsel claims that no new cause of action is set up by the amended answer, and that the counterclaim cannot be maintained as a matter' of law, and that it is for the purpose of delay. I am inclined to think that the plaintiff’s counsel is correct in this view, and that the answer should be stricken out as sham, under the provisions of § 538 of the Code of Civil Procedure. In both of the defendant’s answers he alleges that he was to store and take care of the cider until it was sold, at which time it was to be paid for; he does not name any time when he offered the cider back to the plaintiff, or that he has unreasonably neglected to take 'it away. In a contract, when the property is to remain with the prospective buyer until such time as he shall i1j before he is liable to pay, and in the meantime the title remaining in the seller, the seller is entitled to a reasonable time after notice to remove his property before there is any liability to the purchaser for storage; this must necessarily be so, otherwise a cause of action might exist against a party without his fault, or without giving him an opportunity to remove his property; this would be unjust to an innocent party, and should not be allowed.

It, therefore, seems to me that the amended answer sets up no additional matter of defense and no legal and proper statement of a counterclaim against the plaintiff.

The motion to strike out the amended answer is granted, with ten dollars costs to the plaintiff, to abide the event of the action.  