Majority
p. 391Knauth v. Wertheim. (Supreme Court, Special Term, New York, County. February, 1891.)
Headnote
Practice—Withdrawal op Counter-Claim.Defendant will be permitted to withdraw a counter-claim where he will be pre- . eluded on the trial from offering any evidence to sustain it because of his inability to comply with an order directing him to furnish plaintiff with a bill of particulars.
At chambers. Action by Knauth against Wertheim. Defendant’s answer contained a counter-claim. Plaintiff obtained an order requiring defendant to furnish a bill of particulars within a specified time, with which order defendant was not able to comply. He now moves that he be permitted to amend his answer by striking out the counter-claim, as by the terms of the order he is precluded from giving evidence to sustain it at the trial.
Briesen & Knauth, for plaintiff. Charles Howard Williams, for defendant.
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, either by reply or by evidence on the trial. Motion will therefore be granted on payment of $10 costa to the plaintiff for opposing this motion.