Oishei v. New York Taxicab Co.

Jenks, J. : • This is an action whereby plaintiff seeks to have his lien as attorney for defendant Bifici ascertained and foreclosed against Bifici, that he have judgment against Bifici for $500, that he be adjudged to have a lien on the amount of a certain settlement made by the defendant and Bifici to the extent thereof or any other sum found due, and that the defendant be adjudged to pay to this plaintiff the amount of the lien found due out of the amount of the settlement. The defendant, “ for a further, separate and distinct defense,” pleaded in one paragraph that Bifici never retained the plaintiff as her attorney to prosecute this action against the defendant, and in another paragraph that, upon the settlement of said action with Bifici by the defendant, the said defendant did not agree to- pay the plaintiff for his services as attorney in said -case, and in another paragraph that an agreement, if any, made by the defendant for payment of the attorney’s fees was void under the Statute of Frauds. This appeal fe from an order'denying plaintiff’s motion to strike out such first and second paragraphs on the ground that they do not constitute new matter, that they are unauthorized as new matter, and that defendant be compelled to specifically state the allegations contained in each of the paragraphs as a separate "defense. Examination of the pleadings shows that the defendant in its strict answer to the complaint denied both of the allegations now denied in the further, separate and distinct defense. It is well settled that a specific denial cannot be included in an affirmative defense unless essential to make that defense complete ' and available, otherwise it may be stricken out on motion. (Haffen v. Tribune Association, 126 App. Div. 675, and authorities cited.) I think that under these authorities and also that of Stieffel [685] v. Tolhurst (55 App. Div. 532), the ord,er' must be reversed, with ten dollars costs and disbursements, and the motion to strike out granted, with costs, Hirschberg, P. J., Woodward, Burr and Carr, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted, with costs.