Mark v. Prentice
| Decision Date | 16 October 1959 |
| Citation | 193 N.Y.S.2d 891,19 Misc.2d 907 |
| Parties | Harold L. MARK, Plaintiff, v. Regina PRENTICE, Defendant. |
| Court | New York Supreme Court |
Booth, Lipton & Lipton, New York City, for plaintiff.
Mandel & Permutt, New York City, for defendant.
The plaintiff moves for an order dismissing or striking out the first separate and distinct affirmative defense and counterclaim, and dismissing or striking out the second separate and distinct affirmative defense, set-off and counterclaim.
It appears that the defendant has combined his defenses and counterclaims. This may be done where the facts constitute both a defense and a counterclaim. Hayden Co. v. Mitchell-Tappen Co., 139 Misc. 480, 247 N.Y.S. 537; see Toll v. Friedman, 195 Misc. 258, 65 N.Y.S.2d 555 when the facts do not constitute both.
As to the first separate and distinct affirmative defense and counterclaim, it appears that the substance of the defense is an assertion that the plaintiff never loaned any money to the defendant, that the defendant was a 'straw man' and that the plaintiff was in fact borrowing the money. The facts alleged are provable at the trial under the defendant's denials of paragraphs 3, 4 and 5 of the complaint, and it is unnecessary to allege them as an affirmative defense. However, in Morgan Munitions Co. v. Studebaker Corp., 226 N.Y. 94, 98, 123 N.E. 146, 147, the court said: 'Matter which would be sufficient under a general denial loses none of its efficacy by being pleaded as a defense.' Therefore, it is sufficient as a defense, and the motion to strike it as a defense is denied.
The defendant alleges that the plaintiff never loaned any money to the defendant; but really was the borrower by having induced defendant to lend her name and to be the ostensible borrower by agreeing that 'he would indemnify and save and hold the defendant free and harmless of and from any and all liability, claims, damages and expenses in connection with such transactions'. The defendant claims that the plaintiff's action has caused an expense in connection with the transactions, that is, her attorney's fees herein. The plaintiff in answer relies upon the usual rule that an attorney's fee is not an item of damage, and he interprets the alleged indemnity agreement as an indemnity only as against claims, etc., of third parties and not against the plaintiff's own conduct. The defendant interprets the agreement as sufficiently broad to be an indemnity against any expenses in connection with the transactions which were caused by the plaintiff. The extent of the agreement would seem to depend on a construction of the intent of the parties. Therefore, it cannot be held as a matter of law that the defendant's interpretation is wrong. If the defendant's interpretation is correct and the indemnity is against any expenses, it seems that by the agreement of the parties the attorney's fees are recoverable. This is not inconsistent with the usual rule that 'this Court will not allow counsel fees since such damages are allowed only by special statutory authorization' (Grace Harbor Corp. v. Grace Harbor Ass'n, Sup., 130 N.Y.S.2d 592, 595; also Avalon Construction Corp. v. Kirch Holding Co., 256 N.Y. 137, 145, 175 N.E. 651, 654); but if the parties contract for indemnity against 'expenses', and attorney's fees are within the...
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Colon v. Automatic Retailers Ass'n Service, Inc.
...pay as a result of suits against him with respect to matters against which he is indemnified.' Id. at 650. Lastly, in Mark v. Prentice, 19 Misc.2d 907, 193 N.Y.S.2d 891 (Sup.Ct. Nassau Co. 1959), Special Term was faced with a motion for summary judgment seeking dismissal of defendant's coun......
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Wegman v. Dairylea Co-op., Inc.
...the discretion of the court, it can not be said that, under the facts of this case, the court abused that discretion (Mark v. Prentice, 19 Misc.2d 907, 193 N.Y.S.2d 891; 3 Weinstein-Korn-Miller, N.Y.Civ.Prac., The second cause of action asserted by plaintiff in his complaint was for retalia......