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Browning, King & Co. v. Terwilliger

Supreme Court of New York, Appellate Division

May 12, 1911

BROWNING, KING & COMPANY, a Corporation, Appellant,
v.
FRANK W. TERWILLIGER, Respondent.

Page 517

APPEAL by the plaintiff, Browning, King & Company, a corporation, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 1st day of February, 1911, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the plaintiff's demurrer to two defenses and a counterclaim set up in the defendant's amended answer.

COUNSEL

Charles P. Northrop, for the appellant.

Abraham Feinstein, for the respondent.

DOWLING, J.:

The complaint herein sets forth two causes of action: (1) For the sum of $4,466.71 due under a written lease of premises 1265-1267-1269 Broadway, borough of Manhattan, city of New York, dated April 3, 1908, and covering the period until May 1, 1924, at the annual rental of $11,000 payable bi-monthly, in addition to the sum of $800 annually for Croton water supplied to said premises, payable monthly, of which total the sum of $4,583.34 is for installments of rent due August 1, 1908, December 1, 1908, and February 1, 1910, credit being given for $850, deposited in court; and the remaining amount, $733.37 being due for Croton water charges for the months of April, 1909, to February, 1910, inclusive; (2) for the sum of $355, due under a written lease of premises 1263 Broadway in the same borough, dated April 3, 1908, and covering the period until April 1, 1914, at the annual rental of $1,000, and $5 in addition for heat to be supplied thereto, payable bi-monthly; the installments of rent thereunder for January,

Page 518

March, April and May, 1910, remaining unpaid. To this complaint defendant interposed an amended answer which, after a denial of the allegations contained in two paragraphs of the complaint, set up certain separate defenses to which plaintiff has demurred.

The separate defense first pleaded, although it is called 'a separate and second defense to said action,' is obviously intended as an answer to the first cause of action only, for it refers solely to the claim for rent due for August, 1908, December, 1908, and January, 1909, amounting to $2,750, which is at the rate fixed by the lease set forth in the first cause of action.

This separate defense contains no denial of any allegation in the complaint. It is pleaded as a complete defense to the entire action. It is defective in form, for if intended as a defense to the first cause of action it does not comply with the requirements of the Code of Civil Procedure, as it fails to distinctly refer to the cause of action which it is intended to answer (§ 507); and if intended as a partial defense, it does not so state, nor does it show to what particular cause of action it is deemed to be such (§ 508). Not being pleaded as a partial defense, it must be treated as a complete defense to the cause of action. ( Mott v. De Nisco, 106 A.D. 156.) It is not a complete defense to both causes of action because it contains no denials or affirmative allegations appropriate to defeat the second cause of action; nor to the first cause of action, because it contains no details or affirmative allegations appropriate to defeat the recovery of the amount due for Croton water service or for rent for the month of January, 1910, both of which items are included in that cause of action. Even as a partial defense to the first cause of action the pleading is insufficient, for it purports to set up a new agreement made on January 15, 1909, for a valuable consideration, by which plaintiff 'forgave' the amount of rent then due ($2,750), and agreed to accept rental for the premises described 'in the lease aforementioned' at the rate of $650 per month up to October 1, 1909, and $850 per month thereafter. It is not alleged which premises were covered by the alleged agreement, nor in what lease they were described (there being two leases for separate parcels of property set forth in the complaint), nor what the

Page 519

consideration was which plaintiff received for the new agreement and the relinquishment of its claim for accrued rent. There is no claim that any release was given, nor any statement of what the consideration was which passed from defendant to plaintiff. The allegation that plaintiff made this new agreement abrogating the former written lease and forgave the rent due 'for a valuable consideration' is a mere conclusion of law, as is any such allegation when applied to a non-negotiable instrument, unaccompanied by any statement of the facts showing consideration. ( Fulton v. Varney, 117 A.D. 575.) Nor is there any valid plea of accord and satisfaction, for there is no allegation that the alleged substituted agreement of leasing ever was followed by actual performance thereof. (McCreery v. Day, 119 N.Y. 1.)

The defense which is denominated 'a third defense, and by way of counterclaim' is defective and insufficient. By this it sought to plead a provision of 'the lease set forth in the complaint' (not specifying which of the two therein set forth is meant) by which plaintiff was to furnish 'all necessary steam and heat in sufficient quantities for the proper conduct of a Turkish bath business conducted by this defendant; ' that plaintiff failed to carry out this provision and that the business of defendant was ruined; but there is no allegation of any damages having been sustained by defendant, nor any prayer for relief by way of a judgment for damages. When a cause of action is not based on a contract calling for the payment of a sum of money, but to perform a certain duty, and no damage is expressly alleged, the complaint is demurrable. (Gause v. Commonwealth Trust Co.,100 A.D. 427.) It was further alleged that by the terms of the lease defendant was to have the use and occupation of the vaults under the sidewalk in front of the premises leased until April 3, 1924; that on November 15, 1909, defendant was ordered by the Public Service Commission and the Hudson and Manhattan Railroad ...


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