Wiggins v. Gans

3 Sandf. 738

• Court: The Superior Court of New York City
• Decided: May 10, 1851
• Status: Published

Opinion

Mason, J. (with the concurrence of the other Justices.)

An answer which sets up by way of set-off, that the plaintiff, previeras to the accruing of the demand set forth in the complaint, was indebted to the defendant on account of previous transactions, in a sum of money equal to the sum claimed by the plaintiff, as will appear by the account current rendered by the defendant as stated in the complaint, is indefinite and uncertain.

The defendant was under an order, requiring him to make the answer in this respect definite and certain by amendment, and he now states the set-off to be for work and labor, and for goods, wares, and merchandise, and for money lent, paid out, and expended, in the language of the common counts in actions of assumpsit, .under the old practice. The former answer is in no respect a compliance with the order, and must be stricken out, with $10 costs.

But the defendant may, on presenting a sufficient answer, duly verified, to one of the justices of the court, within five days, apply for permission to put the same in.