McCool v. Merrill-Ruckgaber Co.

129 N.Y.S. 377

Opinion

BIJUR, J.

The action was brought to recover for work, labor, and services in the manufacture of certain steel column bases for a building in course of construction by defendant.

[ 1 ] The answer, after certain admissions and denials and a separate defense, sets out five counterclaims, on none of which, however, any affirmative relief is demanded. They are, therefore, to be treated as separate defenses.

The motion for a bill of particulars was directed to four items, and was granted as to the first, but denied as to the other three. In short, the facts involved in the three items covered by the refusal referred to details of the amount of freight paid by the defendant,, for which it claims plaintiff was liable, and details of the expense which defendant claims to have been put to by reason of plaintiff’s delay in shipping the bases. The learned court below denied the request for particulars in respect of these items ón the authority of O’Rourke v. U. S. Mortgage & Trust Co., 95 App. Div. 518, 88 N. Y. Supp. 926, Smith v. Anderson, 126 App. Div. 26, 110 N. Y. Supp. 191, and Radcliffe v. N. Y. Cab Co., 134 App. Div. 450, 119 N. Y. Supp. 251.

[2] Although it is true that the answer prays for no affirmative relief, nevertheless there are items which defendant must prove affirmatively, not by way of denial of the facts constituting plaintiff’s cause of action, but in reduction of the amount of plaintiff’s recovery. They constitute a “claim,” in the language of section 531 of the Code, as interpreted in Dwight v. Germania Life Ins. Co., 84 N. Y. 493, Reader v. Haggin, 123 App. Div. 489, 107 N. Y. Supp. 963, and Spitz v. Heinze, 77 App. Div. 317, 79 N. Y. Supp. 187.

Order reversed, with $10 costs and disbursements, and motion granted. All concur.