Kenny v. Terwilliger

281 A.D. 952, 120 N.Y.S.2d 87, 1953 N.Y. App. Div. LEXIS 3862

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 20, 1953
• Status: Published

Opinion

Order reversed on the law, with $10 costs and disbursements, and motion granted, with $10 costs, with leave to plead over within twenty days after service of a copy of the order, upon payment of the costs of the motion and of this appeal. Memorandum: The separate defense, as alleged in the answer, constitutes only a partial defense to the cause of action alleged in the complaint. Section 262 of the Civil Practice Act requires a partial defense in an answer to be so designated. The defendant may plead over in an amended answer in the same language as a partial defense, or set forth additional allegations which may constitute a complete defense. All concur. (Appeal from an order denying plaintiffs’ motion to strike out an affirmative defense in defendants’ answer.) Present — Taylor, P. J., Vaughan, Kimball, Piper and Wheeler, JJ.