Leibovitz v. Utopia Land Co. , 107 N.Y.S. 135 ( 1907 )

LEVFNTRITT, J.

We think the order appealed from should be modified by relieving the defendant from separating paragraph 11 into alleged defense and counterclaim. Although the defendant pleads “for a * * * distinct defense * * * and as a counterclaim,” no demand for affirmative relief is prayed. This will relieve the plaintiff from the necessity of replying. Acer v. Hotchkiss, 97 N. Y. 395; American Guild v. Damon, 186 N. Y. 360, 78 N. E. 1081. It clearly appears that it is intended to set up an offset in diminution of plaintiff’s recovery, and no duplicity is apparent. Cable Flax Mills v. Early, 72 App. Div. 213, 76 N. Y. Supp. 191.

In other respects the order should stand. ' The affirmative defense is indefinite and uncertain, in that it may apply to either of two agreements pleaded by the plaintiff—one an original contract in writing, and the other a further contract in modification or substitution thereof. As the plea could apply to either, the plaintiff was entitled to call on the defendant for greater definiteness and certainty.

"The order should be modified accordingly, without costs to either party. All concur.