The complaint is for the price of certain goods, manufactured and delivered to defendant. The original answer,, comprising a general denial, was served on May 14, 1906, and on June 2, 1906, the defendant served an amended answer, which, in addition to a general denial, comprised two counterclaims for damages based.upon allegations of delay by plaintiff in the delivery of the goods. .Prior to the service of the amended answer, andYvithin the time allowed to defendant by law to amend the answer, as of course, the plaintiff had noticed the cause for trial and placed it upon the calendar. Upon the plaintiff’s motion, under section 642 of the Code of Civil Procedure, an order was made striking out the amended answer, as served for delay, unless the defendant would consent in writing that a reply be served and that the cause retain its place upon the calendar. From this order the defendant appeals. Ho criticism is made as to the form of the amended, answer, and there is no question that it was served within the statutory time. The plaintiff, in support of her motion, submitted certain letters between the parties tending to show that defendant had actually accepted delivery of the goods after the time provided in the contract for their delivery had elapsed. ' The order appears to have been made upon the assumption that the defendant, by accepting the delivery of the
In this' we think the court overlooked the distinction between the defense of an action for the contract price for work done and materials furnished on the ground of delay in fulfillment, and the assertion of a counterclaim for damages arising from such delay, a distinction recently pointed out by this court. (Crocker-Wheeler Co. v. Varick Realty Co., 104 App. Div. 568.) The authority cited by the learned court below (Burrowes Co. v. Rapid Safety Filter Co., 49 Misc. Rep. 539) involved' an attempted defense on the ground that the goods as delivered did not comply with the contract requirements. The defendant- had, nevertheless,- with knowledge of the defects, accepted and used the goods, and there was no question of a counterclaim involved. That ease, however rightly decided, affords no authority for the proposition on behalf of-which it is now invoked. The accepted rule is thus stated by .the General Term of this court in Granniss & Hurd Lumber Co. v. Deeves (72 Hun, 171) as follows: “ Undoubtedly the defendant had the right to terminate the contract if the plaintiff was not. proceeding with that diligence which the terms of the' contracts required! But this was not his only remedy. He had a right to let the plaintiff go on and complete his work, and then he had the right to say, ! I will pay you for the work you have done, but I want the damages you have caused me in not doing my work as you agreed to do it,’ ” This is the position which the defendant takes here, and it cannot be said that the counterclaims sought to be pleaded were so obviously invalid in law as to compel the inference that they were pleaded only for the purposes of delay. If the defendant’s statutory time to amend its pleading had elapsed, and it -was appealing to. the court to be allowed to amend as a favor, it might be deemed to be incumbent upon it to show that its counterclaims rested upon some substantial basis as matter of fact, But it was not asking for a favor. On the contrary, it was within its rights in serving. its.amended answer, and. unless its counterclaims were clearly invalid in law, as théy were not, the-court should not upon a motion
O’Brien, P. J., Ingraham and Clarke. JJ., concurred; Houghton, J., dissented.