Metropolitan Printing Co. v. O'Neill

148 A.D. 885, 131 N.Y.S. 1009

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1911
• Status: Published

Opinion

McLaughlin, J.:

Action to recover damages for the breach of a contract for work performed and materials furnished. The appellant interposed an answer in which he attempted to deny certain material allegations of the complaint and then alleged, as a separate defense, “That after the alleged making of the alleged contract herein, and the alleged breach thereof on the part of this defendant in the complaint mentioned, and before this action was commenced, to wit, on the 26th day of August, 1910, the plaintiff accepted and received from the defendant the sum of One hundred and ten dollars and forty-three cents ($110.43) in full satisfaction and discharge of all damages, moneys, debts or liabilities by reason of any contract, agreement or sale by or from the said plaintiff to and on behalf of the said defendant James O’Neill, and in full of all damages by reason of any non-performance of any alleged contract as alleged in said complaint or otherwise.” After issue had been thus joined the plaintiff moved, under section 547 of the Code of Civil Procedure, for judgment on the pleadings. The motion was granted and the appeal is from the order as well as from the judgment. Irrespective of the question as to whether the denials in the answer raise an issue, I am clearly of the opinion that the separate defense pleaded constitutes, if true, a good defense. Pleadings are to be liberally construed, to the end that the court, upon a trial, may get at the merits of a controversy and do justice to the parties. Formerly it was the rule to construe a doubtful pleading most strongly against the pleader, but this rule no longer prevails. When this separate defense is fairly and liberally construed, it is perfectly apparent what the pleader had in mind, and which I think he has sufficiently set forth in this plea, viz., that prior to the commencement of the action the defendant had, by the payment of the sum of money specified, fully paid and discharged any and all claims of" the plaintiff for damages by reason of the non-performance of the contract alleged in the complaint. If these facts be established upon the trial, then there will be no basis for a recovery by the plaintiff. It follows that the judgment and order appealed from must be reversed, with ten dollars costs and disbursements, and the motion denied,, with ten dollars costs. Ingraham, P. J., Laughlin, Miller and Dowling, JJ., concurred. Judgment' and order reversed, with ten dollars costs and disbursements, and motion denied, with - ten dollars costs.