§ 3019.Counterclaims and cross-claims.

After consideration of the problem, the advisory committee decided that adoption of a compulsory counterclaim rule in New York might raise more difficulties that it would solve.

While no attempt to outline all of the considerations will be made, it should be noted that Federal rule 13(a) requires any opposing claim arising “out of the transaction or occurrence that is the subject matter of the . . . claim” to be brought as a counterclaim or be barred. The quoted phrase seems to have created problems that outweight the gain in convenience of such a rule. Moreover, the rules of res judicata and collateral estoppel operate to bar some of these claims in any case. See, generally, Wright, Estoppel by Rule: The Compulsory Counterclaim Under Modern Pleading, 38 Minn L Rev 423 (1954).

Many states have adopted the Federal rule; some have made minor variations, such as the express statement in Iowa rule 29 that “final judgment on the merits shall bar such a counterclaim although not pleaded.” Another class of compulsory counterclaim rules are those following the California pattern, which have essentially the same effect as the Federal rule. See Cal Code Civ Proc § 439 (West 1954).

The Arkansas rule states that “the defendant must set out in his answer as many grounds of . . . counterclaim . . . as he shall have.” Ark Stat Ann § 27-1121 (1947). This appears to state a broader rule, making all possible counterclaims compulsory. See also Ark Stat Ann § 27-1123 (1947).

The New Jersey practice, while based upon the Feneral rules, utilizes a substantially different compulsory counterclaim rule. New Jersey rule 4:13-1 requires that any “liquidated” claim or one “capable of being ascertained by calculation” is a compulsory counterclaim whether or not it arises from the same transaction. Such a rule does not affect negligence cases—the bulk of today’s litigation.

Other jurisdictions have rules tending to induce counterclaims although not compelling them. For example, Indiana’s rule, based on the Federal formula, bars a subsequent action by the defendant “except at his own costs” (Ind Ann Stat § 2-1019 (Burns 1946)), and four states generally prohibit the recovery of costs by the defendant in a subsequent action. Neb Rev Stat § 25-814 (1948); Ohio Rev Code Ann § 2323.40 (Baldwin 1953); Okla Stat Ann tit 12, § 275 (1951); Wyo Comp Stat Ann § 3-1314 (1945).

It is likely that the usual tactical considerations as well as the pressure of res judicata presently leads to counterclaims in many cases without a compulsory counterclaim rule. In negligence cases, the impact of our contributory negligence rule has a further substantial effect in compelling counterclaims. Moreover, the present relationships among insureds and collision and liability insurers often result in one attorney defending the action and another asserting what would be the counterclaim. The committee is also informed that the degree of freedom to utilize arbitration agreements and negotiation among insurers might be impaired if counterclaims were compulsory.

Subd (a) of this section is substantially the same as CPA § 266. An executor or administrator may represent a decedent on claims that belonged to the latter before he died. This must be distinguished both from claims of the estate where the executor or administrator sues as an individual and from claims belonging personally to the executor or administrator. Similarly, claims that are asserted against an executor or administrator may be of various types. Cf. Thompson v Whitmarsh, 100 NY 35 (1885); Gross v Gross, 56 NYS 219 (Sup Ct 1899). This subdivision is not intended to alter the well-settled rule requiring a counterclaim to be a claim against the plaintiff in the capacity in which he sues.

The phrase “a person whom a defendant represents” has been added to eliminate the necessity of a separate provision such as the former CPA § 268 regarding counterclaims asserted by a representative. The first sentence of former § 269, which covered counterclaims asserted against a representative, is also omitted as unnecessary, since it is covered by the phrase “a person whom a plaintiff represents.” The last sentence of former § 269, its history indicates, meant no more than that leave to issue the execution must have been obtained from the surrogate who issued the letters testamentary or of administration, under Decedent Estate Law, § 151. See Code Civ Proc § 506, note (Throop ed 1880); 2 Rev Stat 355, pt 3, c 6 tit 2, §§ 23, 24 (1828). Since the Decedent Estate Law provision in terms applies to any execution against an executor or administrator in his representative capacity, the last sentence of CPA § 269 is unnecessary.

The first sentence of subd (b) of this section parallels subd (a) of this section, but it had no former counterpart in New York. No restriction on the subject matter of a cross-claim is made. Cf. Fed R Civ P 13(g). There is no provision for the assertion of a cross-claim or counterclaim by a plaintiff in a reply. The second sentence is based upon CPA § 264 as well as Federal rule 13(g).

Subd (c), (d) and (e) of this section are restatements of subd 1, 2 and 3 of CPA § 267, which were derived from the Revised Statutes. They were removed to the Code of Civil Procedure in 1877 and have survived all revisions of New York procedure almost verbatim. The remarkable reluctance of previous codifiers to tamper with those provisions is especially striking in the light of the recommendation of the Board of Statutory Consolidation (under Judge Rodenbeck) in 1915 that they be omitted. Such provisions of the consolidated laws as § 41 of the Personal Property Law and article 6 of the Decedent Estate Law are derived from a common source. See also § 167 of the Restatement of Contracts and the New York annotations. Subd (c), (d) and (e) represent only language changes and simplification.

The first sentence of subd (f) of this section is intended to eliminate the necessity for special rules covering the matters formerly treated in CPA §§ 424 and 477 and in part of CPA § 269. Judgments, including the situation formerly covered by CPA § 488 service of process, separate trial and other matters relating to counterclaims and cross-claims are treated in other articles of the new CPLR. The second sentence of subd (f) is a simplification of a provision formerly in CPA § 271. The requirement that summons be served with a copy of answer conforms the provisions to that governing third-party practice. See CPLR § 1007.

Add, L 1962, ch 308, eff Sept 1, 1963; amd, L 1966, ch 182, § 1, eff Sept 1, 1966; L 1994, ch 563, § 5, eff July 26, 1994.