Davidow v. Gusmor Realty Corp.

12 Misc. 2d 801, 177 N.Y.S.2d 759, 1958 N.Y. Misc. LEXIS 3263

Opinion

Aron Steuer, J.

In this action by a general contractor against the owner to foreclose a mechanic’s lien a subcontractor has been joined as a defendant. This latter has pleaded a counterclaim against the owner. The motion is addressed to that counterclaim. In it the subcontractor attempts to plead some of the paragraphs of the amended complaint by reference. This is improper. A counterclaim must state a cause of action completely in itself and the only reference allowed is to paragraphs in the same pleading (Rules Civ. Prac., rule 90). The evil is illustrated by this case. By this method the subcontractor has sought to plead that the general contractor has performed his contract with the owner without pleading what that contract was and while denying knowledge of it.

The motion to dismiss the counterclaim is granted with leave to serve an amended answer on or before June 5, 1958.