Strauss v. Hanover Realty & Construction Co.

67 Misc. 572, 124 N.Y.S. 757

• Court: New York Supreme Court
• Decided: May 15, 1910
• Status: Published

Opinion

Whitney, J.

In a suit for the forec' lOÍ a mechanic’s permitted by section 521 of the Code of Civil Procedure. The latter then served upon the former an answer to the answer, and is in turn served with a notice of motion for a bill of particulars. By section 522 of the Code each allegation of the answer first served was deemed controverted by traverse or avoidance, as the case ¡might he. In these respects our procedure differs from that in those Code States which provide for a cross-complaint by one defendant against the other. Hence, the answer to the answer was a document unknown to the law (see Havana City R. Co. v. Caballos, 49 App. Div. 421), and a bill of particulars of any allegation in conf ession and avoidance would be an anomaly. The affirmalien one defendant served an answer codefendant, as tive allegations of this so-called answer to an answer purports to he pleaded not only as a defense, but also as a counterclaim against the codefendant. The proper way to interpose a claim against a codefendant is to include it in the main answer and serve that answer. Perhaps in such a case a hill of particulars of the allegations of that answer could he ordered on application of the codefendant. As the matter stands the motion must he denied.

Motion denied.