Levitt v. Griswold

PENDLETON, J. This is a trial of two issues of law raised by-plaintiff’s demurrer to the separate defense of the statute of limitations by defendant Ruland and by defendants Griswold and Brush. [1] The separate defense is defective in substance. Not only are the allegations of the complaint sufficient to show that a benefit moved to defendants by the completion of the work, but plaintiff released his mechanic’s lien and proceeded to do such work as "defendants or their architect should order done.” This appears to be a distinct enlargement of plaintiff’s obligation under his original contract with the Windsor Construction Company. Defendants’ promise was therefor an original promise founded on a new consideration beneficial to the promisor, and is not within the statute pleaded. Schwoerer & Sons, Inc., v. Stone, 130 App. Div. 796, 115 N. Y. Supp. 440, affirmed 200 N. Y. 560, 93 N. E. 1116; White v. Rintoul, 108 N. Y. 222, 15 N. E. 318; Cooper & Polak Structural Iron Works v. Rosing et al. (Sup.) 147 N. Y. Supp. 241; Kleinman v. Auerbach, 82 Misc. Rep. 436, 143 N. Y. Supp. 1033. [2] It is true the answer contains a general denial, but this is no part of the separate defense, and on this demurrer the complaint must be taken as not denied. Berg v. Bates, 153 App. Div. 12, 137 N. Y. Supp. 1032; Schattmen v. Maze Realty Co., 150 App. Div. 559, 135 N. Y. Supp. 47; Douglas v. Coonley, 156 N. Y. 521, 51 N. E. 283, 66 Am. St. Rep. 580. Demurrer sustained, with leave to defendant to serve an amended answer within 30 days on payment of costs on demurrer. Order signed and filed.