Goldman v. Doerschuck , 200 A.D. 840 ( 1921 )

Judgment reversed and a new trial granted, with costs to defendant to abide the event. In view of the failure to reply, defendant’s counterclaim for the equitable relief of a reformation of the lease for mutual mistake in respect to the clause reserving rent, stood admitted. If the new matter had sought merely to destroy plaintiff’s claim, no reply would be required. (Walker v. A. C. Ins. Co., 143 N. Y. 167.) But this counterclaim did more, as defendant might obtain affirmative relief on the reformed instrument. Should plaintiff hereafter obtain from the Special Term leave to interpose a reply, the equitable issue thus raised should have a separate trial under Civil Practice Act, section 424. (Ward v. Union Trust Co., 166 App. Div. 762.) Blackmar, P. J., Mills, Putnam, Kelly and Jaycox, JJ., concur.