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Leibovitz v. Utopia Land Co.

107 N.Y.S. 135 Court N.Y. App. Term Decision date 1907-11-29 English

Delivered by LEVFNTRITT, J.

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p. 135
LEIBOVITZ v. UTOPIA LAND CO.
(Supreme Court, Appellate Term,
November 29, 1907.)

Headnote

1. Pleading—Set-Off and Counterclaim.
Where, though defendant pleads “for a * * * distinct defense * * * and as a counterclaim,” no demand for affirmative relief is prayed, plaintiff is relieved from the necessity of replying, and defendant should not be required to separate his pleading into defense and counterclaim.
2. Same—Definiteness.
Where* an affirmative defense may apply to either of two agreements pleaded by plaintiff, plaintiff is entitled to have the answer made more definite and certain.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 1173-1196.]
Appeal from City Court of New York, Special Term.
Action by David Leibovitz against the Utopia Land Company. Erom an order requiring defendant to make its answer more definite and certain, and to separate a paragraph thereof into alleged defense and counterclaim, defendant appeals. Order modified.
Argued before GILDERSLEEVE, P. J., and LEVENTRITT and" ERLANGER, JJ.
p. 136
Wasserman & Jacobus, for appellant.
Paul Gross (Herman Kahn, of counsel), for respondent.

We think the order appealed from should be modified by relieving the defendant from separating paragraph 11 into alleged defense and counterclaim. Although the defendant pleads “for a * * * distinct defense * * * and as a counterclaim,” no demand for affirmative relief is prayed. This will relieve the plaintiff from the necessity of replying. Acer v. Hotchkiss, 97 N. Y. 395 ; American Guild v. Damon, 186 N. Y. 360 , 78 N. E. 1081 . It clearly appears that it is intended to set up an offset in diminution of plaintiff’s recovery, and no duplicity is apparent. Cable Flax Mills v. Early, 72 App. Div. 213 , 76 N. Y. Supp. 191 .

In other respects the order should stand. ' The affirmative defense is indefinite and uncertain, in that it may apply to either of two agreements pleaded by the plaintiff—one an original contract in writing, and the other a further contract in modification or substitution thereof. As the plea could apply to either, the plaintiff was entitled to call on the defendant for greater definiteness and certainty.

"The order should be modified accordingly, without costs to either party. All concur.

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