Wiggins v. Gans — 3 N.Y. Super. Ct. 738

Majority

p. 738

Wiggins v. Gans.

Headnote

An answer is indefinite and uncertain, which sets up by way of set off, that the plaintiff is indebted on account of previous transactions, in a sum equal to his claim, as will appear by reference to an account current stated in tire complaint to have been rendered by the defendant to the plaintiff.

A defendant under an order to make an answer more definite, does not comply with the order by stating the set off to be for work and labor, goods, wares, &-c. and money lent, &e. in the language of the common counts in assumpsit.

May 10, 1851.

Motion to strike out an answer. The matters appear in the decision.

H. A. Oram, for the plaintiff.

O. jS’. Appleby, for the defendant.

(with the concurrence of the other Justices.) An answer which sets up by way of set-off, that the plaintiff, pre-

p. 739

vieras to tlie accruing of the demand set forth in the complaint, was indebted to the defendant on account of previous transactions, in a sum of money equal to the sum claimed by the plaintiff, as will appear by the account current rendered by the defendant as stated in the complaint, is indefinite and uncertain.

The defendant -was under an order, requiring him to make the answer in this respect definite and certain by amendment, and he now states the set-off to be for work and labor, and for goods, wares, and merchandise, and for money lent, paid out, and expended, in the language of the common counts in actions of assumpsit, under the old practice. The former answer is in no respect a compliance with the order-, and must be stricken out, with $10 costs.

But the defendant may, on presenting a sufficient answer, duly verified, to one of the justices of the court, within five days, apply for-permission to put the same in.