Opinion
November 5, 1920.
Leonard B. Smith of counsel [ Smith Agate, attorneys], for the defendant, appellant, respondent.
Leon Lauterstein of counsel [ Edmond E. Wise with him on the brief], Wise Seligsberg, attorneys, for the plaintiff, respondent, appellant.
Present — CLARKE, P.J., DOWLING, SMITH, PAGE and GREENBAUM, JJ.
German American Coffee Co. v. Diehl, No. 2 ( 86 Misc. Rep. 547; affd., 168 App. Div. 913, on opinion of PAGE, J., below), and German American Coffee Co. v. O'Neil, No. 2 ( 168 App. Div. 913; affd., on opinion of PAGE, J., below in Diehl Case, supra; affd., 216 N.Y. 726) are ample authority for the proposition that the defense of an adequate remedy at law in an action brought under section 91-a of the General Corporation Law (as added by Laws of 1913, chap. 633) is bad. It follows that the denials sought to be incorporated in the defense proposed by the defendant are entirely futile.
With respect to the defendant's appeal from so much of the order as denied leave to plead the counterclaim, we are of opinion that the court exercised sound discretion in denying this motion, for the reasons that the counterclaim proposed refers to matters wholly unrelated to the cause of action set forth in the complaint and would tend to prejudice the plaintiff by unnecessarily complicating the issues. We are also of opinion that the defendant was guilty of gross laches in making this motion. In any event the defendant cannot be prejudiced since the right inheres to assert his claim in an independent action. The provision of the order appealed from, which granted the defendant leave to serve a second amended answer, is stricken out and the motion to serve a second amended answer is in all respects denied, and the order is modified as above indicated, and as modified affirmed, with ten dollars costs and disbursements to the plaintiff.
Order modified as directed in opinion and as so modified affirmed, with ten dollars costs and disbursements to plaintiff. Settle order on notice.