Flegenheimer v. Bergl

Order, so far as appealed from, unanimously reversed and the motion granted, with leave to replead as a partial defense so much of the allegations of the stricken pleading as is appropriate as a partial defense. The vice in allowing the defense as presently pleaded to stand as a partial defense is that it is largely conceived and framed as a counterclaim which is not allowed. Much of it is inappropriate as a defense and should not be allowed to stand as such. In the interest of a proper joining and limiting of issues, any partial defense should be properly framed and limited to allegations of proper defense. Settle order on notice. Present — Peek, P. J., Dore, Cohn, Breitel and Bergan, JJ.