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Burlingham v. Gargan

121 N.Y.S. 926 Court N.Y. App. Term Decision date 1910-03-15 English

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p. 926
BURLINGHAM et al. v. GARGAN.
(Supreme Court, Appellate Term.
March 15, 1910.)

Headnote

Pleading (§ 142[1] )—Answer—Separating Counterclaims.
Where defendant in his answer set up as a separate defense and counterclaim, first, an agreement to protect him against loss on a purchase of stock; second, a wrongful sale of the stock; and, third, an agreement to make good the loss on such sale—he should be obliged to separately set forth Ms counterclaims arising by reason of the wrongful sale and by reason of the breach of contract to make good his loss.
[Ed. Note.—For other cases, see Pleading, Dec. Dig. § 142.[1] ]
Appeal from City Court of New York, Special Term.
Action by Charles C. Burlingham and others against Patrick E. Cargan. From an order denying a motion to make amended answer more definite and certain, and to direct defendant to serve an amended answer separately stating and numbering affirmative defenses and counterclaims, plaintiffs appeal.
Modified and affirmed.
Argued before SEABURY, LEHMAN, and GAVEGAN, JJ.
Irving L. Ernst and D. Raymond Cobb (Monroe M. Schwartzschild, of counsel), for appellants.
Ellison, MacIntyre & Davis (Arnold Davis and Frank J. Ryan, of counsel), for respondent.

The plaintiff has moved for an order that defendant should make his amended answer more definite and’'certain, and further ordering the defendant to serve a second answer separately setting forth and numbering his counterclaims. The justice at Special Term denied,the motion.

p. 927
We think that the denial of the motion to make more definite and certain was proper, but, since the answer sets forth as a separate defense and counterclaim, first, an agreement by the brokers to protect him against loss upon a purchase of stock; second, a wrongful sale of the stock; and, third, an agreement to make good the loss upon such sale—he should be obliged to separately set forth his counterclaims arising by reason of the wrongful sale and by reason of the breach of contract to make good his loss.

The order should be modified, as indicated in the opinion, and, as modified, affirmed, without costs on this appeal.