Bowsky v. Schlichten

Plaintiff appeals from an order denying his motion for a bill of particulars as to the allegations contained in the third separate and distinct defense set forth in defendant’s answer. .,

Plaintiff sued on two separate causes of action: First, for the value of the use and occupation by defendant of certain premises owned by the plaintiff; second, for moneys paid for telephone service furnished the defendant while he was an occupant of said premises. The answer denies the occupancy of the premises; denies the allegation of nonpayment of rent; denies that the plaintiff performed all the conditions of the lease on his part; denies the expenditure by plaintiff of moneys for defendant in payment of telephone charges, and sets up as separate defenses: First, surrender and acceptance of the. premises, and second, as a separate and distinct defense alleges: “ That the defendant had tenants ready and willing to sublet said apartments *207from defendant, but the plaintiff refused to permit the defendant to sublet the premises and hindered and prevented and deprived the defendant of the right to sublet said premises, and prevented prospective tenants from subletting from defendant, and wrongfully induced them to break their agreement with defendant and to refuse to sublet the apartments from defendant and induced them to take other apartments in the same building from the plaintiff and also prevented plaintiff from securing other parties to sublet the same to defendant’s damage in the sum of $800.”

The answer does not contain a demand for affirmative relief, but prays simply for a dismissal of the complaint. The motion for a bill of particulars relates only to the matter set up in this separate defense. The court below denied the motion on the ground that “ The plaintiff has not replied to the counterclaim; no issue was raised, and the facts are to be taken as admitted.” Code Civ. Pro., §§ 514, 522; Talmadge v. Sanitary Security Co., 2 App. Div. 44. The learned court below seems to have erred in the application of the rule as to separate defenses. Where an answer does not ask for affirmative relief, it must be treated as setting up separate defenses, not requiring reply. See McCool v. Merrill-Ruckgaber Co., 129 N. Y. Supp. 377; Walker v. American C. Ins. Co., 143 N. Y. 167; Rose v. Village of White Plains, 146 App. Div. 470.

The complaint and answer put in issue the matters as to which plaintiff demands a bill of particulars and the motion should have been granted.

The order must, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted.

•Lehmau and Bijub, JJ., concur.

Order reversed with ten dollars costs -and disbursements, and motion granted.