Icahn v. Kestlinger

Order modified so as to grant plaintiff’s motion to strike out the denials contained in defendant Ruf’s answer, but denying his motion to strike out the counterclaim, and as so modified affirmed, without costs, with permission to plaintiff to serve a reply within ten days after notice of entry of the order to be made upon this decision. The denials contained in appellant’s answer 842 are insufficient to raise any issue. (D. & G. Girl Coat Co., Inc., v. Kafka, 218 App. Div. 607; affd., 245 N. Y. 646.) The counterclaim, in our opinion, states a cause of action. Appellant’s failure to file the conditional sales agreement is not available to plaintiff, who is a prior mortgagee. (Perfect Lighting F. Co., Inc., v. Grubar Realty Corp., 228 App. Div. 141.) While the judgment in the mechanic’s lien action, if proved on the trial, under plaintiff’s reply, will constitute a bar to appellant’s cause of action set up in the counterclaim (Ratchford v. Cayuga Co. Cold Storage & W. Co., 217 N. Y. 565; Kirk v. Crystal, 118 App. Div. 32; affd., 193 N. Y. 622), this defect does not appear on the face thereof and may not be shown by affidavit as it is not one of the defects referred to in rule 110 of the Rules of Civil Practice. Lazansky, P. J., Young, Kapper, Hagarty and Cars-well, JJ., concur.