p. 357GARFIELD NAT. BANK v. KIRCHWEY.(City Court of New York, General Term.Headnote
Pleading—Answer—Stating Defense and Counterclaim.Where an answer contains several paragraphs, separately numbered, one of which recites that defendant “further answering by way of defense,” etc., and another that defendant “further answering by way of counterclaim,” etc., such paragraphs properly plead new matter and counterclaim, and a motion that defendant be required to serve amended answer setting out the affirmative matter “in such manner as to enable plaintiff to ascertain whether the same is intended to be pleaded by way of defense or counterclaim” should he denied.
Appeal from special term.
Action by the Garfield National Bank against George W. Kirchwey. From an order granting a motion to compel defendant to make his amended answer more definite and certain, defendant appeals. Reversed.
Argued before VAN WYCK, 0. J., and CONLAN, J.Hector M. Hitcbings, for appellant.
John J. Adams, for respondent.
The defendant’s original answer labeled his affirmative plea as “a defense, set-off, recoupment, cause of action, and counterclaim to the matters alleged in the complaint,” and to this plaintiff objected, and properly sought and obtained on motion an order compelling defendant to make his answer more definite and certain by separately stating each and every defense or counterclaim. This order the defendant had fully obeyed when he served an amended answer, by the second subdivision of which he set forth as follows: “Further answering by way of defense,” and by the third subdivision of which he says: “Further answering by way of counterclaim.” The first is an allegation of new matter
p. 358by way of defense, and the latter is good pleading by way -of counterclaim, and each is properly labeled. To the first, plaintiff, may be compelled to reply on defendant’s application; and to the latter he will be in default unless he replies; and either or both are open to his demurrer, for each is fully stated in separate, subdivisions of the answer, properly numbered and folioed. However, plaintiff sought and obtained the order from which this appeal is taken, directing defendant to serve another and further amended answer, setting out the affirmative matter “in such manner as to enable plaintiff to ascertain whether the same is intended to be pleaded by way of defense or counterclaim.” The plaintiff had already pleaded the new matter as a defense and as counterclaim', and this he had the right to do under the Code, provided he pleaded them separately, fully stating each in a separate subdivision of the answer, properly numbered and folioed. This second motion should have.been denied.
The order is reversed, with costs, and the original motion denied, with $10 costs.