Ruderman v. Bloch

145 N.Y.S. 913

• Court: Appellate Terms of the Supreme Court of New York
• Decided: January 16, 1914
• Status: Published

Opinions

PAGE, J.

The separate defense contained in paragraphs 9 to 16, inclusive, is unquestionably insufficient.

[1, 2] The one contained in paragraphs 2 to 8, inclusive, is based on the following allegations, in substance: That the plaintiff having leased a building from defendants, and having agreed to make certain repairs to, and changes therein, to secure which the $2,000 in suit was deposited with the defendant, “entered upon the building without the knowledge or consent of the landlords and completely ruined it, maliciously and wrongfully destroying and dismantling the building beyond repair for the sole purpose of injuring the landlords.” While a pleading to which a demurrer has been interposed' must be read with all intendments in favor of the pleader, nevertheless, this so-called “defense and set-off” alleges a trespass aggravated by willful and malicious damage to real property which has no relation to the contract sued upon; nor can it have arisen out of the “transaction.”

[3] If defendants desire to plead a breach of plaintiff’s agreement to repair the building as a defense to plaintiff’s action to procure the return of the deposit, which was security for the carrying out of the repairs, it is easy to do so. The purpose of a-pleading is to define the issues.

The order should be modified by allowing the defendants to serve an amended answer within six days upon payment of $10 costs in the court below, and as modified should be affirmed, with $10 costs and disbursements.

BIJUR, J., concurs;