SMYTH v. McDONOGH

The action was brought to foreclose a mortgage given by defendant to plaintiff. No deficiency judgment is sought. The defendant is an attorney and from time to time between March 20, and August 31, 1937, borrowed from plaintiff the sum of $500, and on the latter date gave his bond and mortgage in that amount and paid to plaintiff the sum of four dollars and sixty-seven cents, representing interest on the loans to that date. The mortgage is in default. The defendant interposed several counterclaims for money due and unpaid for professional services alleged to have been rendered to plaintiff a considerable time before the delivery of the bond and mortgage. Plaintiff moved for summary judgment pursuant to rule 113 of the Rules of Civil Practice, and to strike out the amended answer pursuant to rule 109 of the Rules of Civil Practice and section 262 of the Civil Practice Act. The counterclaims were stricken out, without prejudice to the bringing of another action, and the motion for summary judgment granted. The discretion of the county judge was properly exercised pursuant to the provisions of section 262 of the Civil Practice Act, which provides in so far as the same is pertinent here that the court "may in its discretion, whenever the interests of justice require, * * * strike out the counterclaim without prejudice to the bringing of another action. * * *." (See, also, Woodruff v. Ackert, 80 Hun, 603; affd., 145 N.Y. 600.) The order of the County Court should be affirmed. Order unanimously affirmed, with costs.