I dissent for the following reasons: The reply here contains general denials of the defendant’s counterclaim. The 4th paragraph of the reply, which by some is thought to be an attempt to set up a separate defense to the first counterclaim of the defendant, does not contain a single allegation of defense to the counterclaim. In reality, it is merely something added on to the denials, and the fact alleged in that paragraph could well be proved under the general denials. In substance, the plaintiff denies the counterclaim and then unnecessarily adds the 4th paragraph of his reply by alleging that his compensation was to be, not only ten per cent of the cost, but also ten dollars a day.
For these reasons I think the demurrer, being to a separate paragraph of the reply, should have been overruled. (New Jersey Steel & Iron Co. v. Robinson, 60 App. Div. 69.)
Moreover, I think the 4th paragraph of the reply is inconsistent with the complaint. The complaint alleges that the plaintiff was to supply work and material, for which defendant agreed to pay him $3,324.83. It appears from the 4th paragraph of his reply that his compensation was to be ten per cent of the value of the work done and the amount expended in its performance, together with ten dollars a day during the period of construction. According to the complaint plaintiff was to furnish the material and provide the work, and get $3,324.83 for it, while according to the reply he was 'to have ten per cent and ten dollars per day as his compensation, a claim which is inconsistent with the position that he was to furnish the material.
Where the reply contains matter inconsistent with the complaint, and not amounting to'a complete defense to the counterclaim, the remedy is by motion to strike out as irrelevant. (Code Civ. Proc. § 545; Frank Brewing Co. v. Hammersen, 22 App. Div. 475; Eidlitz v. Rothschild, 87 Hun, 243.)
I think the court was right in overruling the demurrer.
Order reversed, with ten dollars costs and disbursements, and demurrer sustained, with ten dollars costs.