SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT
December 12, 1968
CITY OF UTICA, PLAINTIFF,
GOLD MEDAL PACKING CORP. ET AL, DEFENDANTS IMPLEADED WITH WILLIAM A. SCHMITT, TRUSTEE OF GOLD MEDAL PACKING CORP., BANKRUPT, APPELLANT-RESPONDENT, AND CHICAGO DRESSED BEEF CO., INC., RESPONDENT-APPELLANT. (NO. 4.)
Appeals from order of Oneida Special Term, dismissing petition and counterclaims, without prejudice.
Bastow, P. J., Goldman, Del Vecchio, Witmer and Henry, JJ.
Memorandum: The trustee in bankruptcy of Gold Medal Packing Corporation, by way of defense to the claims of three creditors, namely, Chicago Dressed Beef, Inc. (hereinafter "Chicago"), Western Pork Packers, Inc. (hereinafter "Western") and National Packing Co. (hereinafter "National") against the bankrupt, interposed among other pleadings a so-called second counterclaim against National, alleging fraud charges similar to those he had alleged against Chicago and which by order dated March 14, 1968 and entered March 18, 1968 have been sent to Trial Term for trial, and similar to those he alleged against Western and which in City of Utica v. Gold Medal Packing Corp. (31 A.D.2d 731, Appeal No. 3, decided concurrently herewith) have been ordered to be tried jointly with the fraud issues against Chicago. It was error for the Court to grant said creditors' motion for dismissal of this counterclaim. Accordingly, this part of the order should be reversed and the motion to strike the second counterclaim should be denied with the direction that the issues presented by reply to said counterclaim be joined for trial with the fraud issues above referred to against Chicago and Western, and as so modified the order appealed from should be affirmed.
Order unanimously modified to reverse insofar as it grants a motion to dismiss the second counterclaim against the creditor National Packing Company, and motion denied with direction for further proceedings in accordance with the Memorandum herein, and as so modified, order affirmed with costs.
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