The opinion of the court was delivered by: BONSAL
On December 5, 1968, Frances Deney, Inc. (Denney) instituted an action, 68 Civ. 4841 (Denney's action), in this court against B.B. Weit Printing Co., Inc. (Weit), and others, alleging that Denney and Weit had entered into a contract on April 25, 1968 (the April 25 contract), whereby Weit agreed to print and furnish to Denney three lots of printed folders, each lot containing 3,000,000 folders, at a price of $17.90 per 1,000; that Weit failed to furnish the folders to Denney in accordance with the agreed-upon delivery schedule; and that Denney had sustained damage in the amount of $1,000,000. On December 20, 1968, Weit filed an answer denying Denney's allegations, and filed a counter-claim alleging that Weit had performed all services required by the April 25 contract, but that Denney had breached the April 25 contract by cancelling it, and that Weit had sustained damages in the amount of $90,574.00.
On December 17, 1968, Weit instituted this action (Weit's action) against Denney in the New York Supreme Court, New York County, alleging that, between June 19, 1968 and September 20, 1968, Weit had manufactured, sold, and delivered to Denney certain items, viz., printed folders and cards, and had performed labor and rendered services at an agreed-upon price. Weit alleged that, of $74,217.44 owing to it on September 30, Denney had paid only $30,645.44 and still owed $43,572.00.
On December 19, 1968, Weit obtained an order of attachment against Denney in Weit's action, pursuant to § 6201, CPLR, in the amount of $43,572.00; in the affidavit in support of the order of attachment, Weit's president asserted that Denney
"* * * is a Pennsylvania corporation with offices both in Philadelphia and New York City.
Prior to June 19, 1968, [Denney] did engage [Weit] for certain printing work
* * * At this time there is a substantial sum of money owed to [Weit] by [Denney]
* * * [Denney] has money owed to it by several department stores located in the City and State of New York which choses in action [Weit] now seeks to attach."
On January 10, 1969, Denney removed Weit's action to this court, and on January 20, 1969, filed a general denial to the complaint, now filed as 69 Civ. 111.
On January 24, 1969, Weit and Denney consented to an order discharging the attachment in Weit's action and releasing the funds seized by the Sheriff of New York County under the order of attachment, Denney posting a bond in the amount of $43,572.00 in accordance with § 6222, CPLR.
Denney now moves, pursuant to Rule 41(b), F.R.Civ.P., for an order dismissing Weit's action for failure to comply with Rule 13(a), F.R.Civ.P.; and, pursuant to Rule 64, F.R.Civ.P., for an order vacating the attachment.
Weit cross-moves, pursuant to Rule 56, F.R.Civ.P., for summary judgment in Weit's action, on the ground that no triable issues of fact were raised by Denney in its answer, or, in the alternative, for an order directing Denney to indicate specifically what items in Weit's complaint it disputes; and for an order consolidating Denney's action ...