Partridge v. Nee

Order granting plaintiff’s motion to strike out the separate defense and counterclaim in the defendant’s amended answer to the complaint affirmed, with ten dollars costs and disbursements. The defendant is given twenty days in which- to amend his answer, on payment of costs. We are of opinion that the counterclaim contained in the defendant’s amended answer in defective, in that the pleading fails to state acts or omissions on the part of the plaintiff in the prosecution of the partition action from which the conclusion of negligence may be drawn. (Peterson v. Eighmie, 175 App. Div. 113; Beatty v. McCutcheon, 200 id. 869; 3 Carmody N. Y. Prac. § 950, p. 1874.) Lazansky, P. J., Kapper, Hagarty, Carswell and Davis, JJ., concur.