Majority
p. 369KNAUTH v. WERTHEIM. N. Y, Supreme Court; First District, Chambers ; February, 1891.
Headnote
1. Withdrawal of counter-claim?; Where defendant will be prevented at the trial from giving evidence to sustain a counter-claim* owing to his inability to comply with an order directing a bill of particulars, the answer may be amended upon defendant’s motion before trial by striking out the counter-claim.2. The same; costs?\ It seems plaintiff would not in such case be entitled to an allowance based upon the counter-claim, as he has never been called upon to meet it either by reply, or by evidence on the trial.
Motion for leave to serve an amended answer by striking out counter-claim.
Defendant’s affidavit showed that plaintiff had procured an order directing defendant to serve a bill of particulars within a given time, or be precluded from giving evidence at the trial; and that defendant would be unable to comply with such order.
Charles Howard Williams, defendant’s attorney, for the motion.
Briesen & Knauth, plaintiff’s attorneys, opposed.
I see no reason why this application should not be granted. The plaintiff has succeeded in obtaining an order that will prevent the defendant from offering any evidence to sustain the counter-claim, and no good purpose can be subserved by allowing it to remain in the answer. Plaintiff would not be justified in obtaining an allowance based upon this counterclaim, as he has never been called upon to meet it
p. 370
either by reply or by evidence on the trial. Motion will therefore be granted on payment of $10 costs to the plaintiff for opposing this motion.