E. Sonnenschein & Co. v. Roberts Companies of America, Inc.

272 A.D.2d 1010

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 31, 1947
• Status: Published

Opinion

Per Curiam.

The fraudulent misrepresentations alleged in the counterclaim are not claimed to be part of a general plan and should, therefore, be separately stated and numbered (People v. Tweed, 63 N. Y. 194, 200; Wesiheimer v. Musliner, 46 App. Div. 96; McCaffrey v. Halsey Stuart & Co., Inc., 250 App. Div. 429, 430). The new matter pleaded is obviously not matter constituting a defense to plaintiff’s complaint. The order, so far as appealed from, should be modified by directing defendant separately to state and number its three causes of action in the event that it chooses to replead them and by granting the motion to strike out the affirmative allegations set up in the answer insofar as they are pleaded as a defense and as so modified affirmed, with $20 costs and disbursements to the appellant, with leave to the defendant to serve an amended answer in accordance with the views expressed in this opinion on payment of said costs.

Peek, P. J., Cohn, Callahan, Yan Yoorhis and Shientag, JJ., concur.

Order, so far as appealed from, unanimously modified by directing defendant separately to state and number its three causes of action in the event that it chooses to replead them and by granting the.motion to strike out the affirmative allegations set up in the answer insofar as they are pleaded as a defense and as so modified affirmed, with $20 costs and disbursements to the appellant, with leave to the defendant to serve an amended answer in accordance with the views expressed in the opinion, on payment of said costs. Settle order on notice.