Livingston v. A. B. Dick Co.

Personius, J. The plaintiff alleges a contract for the insertion of his advertisement in the telephone directory and the listing of his name in the classified telephone directory; he also alleges the failure of the defendants to make such listing and that the defendants erroneously fisted the name of a competitor. The defendants admit the contract, attach a copy to their answers, and admit the failure to fist the plaintiff in the classified telephone directory. For the first separate defense, each defendant alleges that said contract contained a provision limiting the plaintiff’s damage to the amount of the charge made for such advertisement during the period during which the error or omission remained uncorrected after notice in writing. They further allege that they have not demanded and the plaintiff has not paid such charges or any part thereof. For a second defense, the defendants allege that no notice of any error was given until after October 14, 1931. Each defendant moves, under section 274 of the Civil Practice Act (formerly section 516 of the Code of Civil Procedure), for an order requiring the plaintiff to reply to said first and second separate [491] defenses. We think the motion should be granted. (Barker v. O’Grady, 98 Misc. 42; Dittenfass v. Horsley, 171 App. Div. 507; Schweitzer v. H.-A. P. A. Gesellschaft, 149 id. 900; Lincoln Trust Co. v. McVickar, 68 Misc. 132.) The separate defenses pleaded may constitute a complete defense. (Hamilton, etc., Co. v. N. Y. Tel. Co., 253 N. Y. 468.) If a reply is made, it may result in the final disposition of the case by the motion for judgment upon the pleadings. Under such circumstances, it is not necessary that the new matter must constitute a complete defense. (Lincoln Trust Co. v. McVickar, supra; Barker v. O’Grady, supra.) The motions are granted, but without costs. Submit order accordingly.