Kucher v. Carrl

23 Misc. 250, 51 N.Y.S. 168

• Court: City of New York Municipal Court
• Decided: March 15, 1898
• Status: Published

Opinion

O’Dwyer, J.

The plaintiff, for his first canse of action, alleges the letting of certain premises to the defendant for the term of one year commencing October 1, 1896, at a specified rent and the nonpayment of a portion of the rent due for the month of September, 1897.

For a second canse of action, the plaintiff alleges the holding over and continued possession of the premises by the defendant after the expiration of his term, at 12 o’clock, noon, on the 1st day of October, 1897.

The defendant interposed an answer putting in issue every material allegation of the complaint and ‘also setting up, as a Special, separate and distinct defense, the plea that the plaintiff entered upon and took possession of the demised premises on the 1st day of October, 1897, before 12 o’clock, noon, of that day.

A motion was subsequently made on the part of the plaintiff to compel the defendant to make said answer more definite 'and certain, which resulted in an order which required the defendant %o amend his answer so as to show among other things “ which cause of action set forth in the complaint the separate 'and distinct defense purports to answer.”

In pursuance of that order the amended .answer was served.

Thereafter another motion was made on the part of the plaintiff to strike out,from' said amended .answer the defendant’s separate and distinct defense, upon the alleged ground “ that it failed to show which 'cause 'of action set forth in the complaint it purported to answer.” The motion was denied, and from the order entered denying the same this appeal is taken.

The separate and distinct defense set up in the amended answer clearly' and distinctly refers to the second cause of action of the complaint.

The motion was based upon the alleged ground “ that the. amended answer did not comply with the aforesaid order of this court in that' it totally failed !to s,how which’ cause of action set forth in the complaint the further separate and distinct defense purported to answer.”

A mere inspection of the pleadings will show that the separate and distinct defense set forth in the answer clearly and distinctly refers to the second cause of action.

There is no obscurity lor ambiguity about the language used. By paragraphs numbered four and five, thé defendant plainly refers to and answers the second cause of action and by paragraph numbered six “ for a furthejr, separate and distinct defense thereto ” the defendant alleges that the plaintiff entered upon and took possession' of said premises on the 1st day of October, 1897, before 12 o’clock, noon, of that day.

The order appealed from should be affirmed, with costs.

Eitzsimons, Oh. J., concurs.

Order affirmed, with costs.