Tompkins v. Leitz

In an action to recover damages for malicious prosecution, the plaintiffs appeal from a resettled order of the City Court of Yonkers, dated April 29, 1960, which upon reargument denies their motion: (1) to strike as sham and frivolous certain denials contained in the defendant’s answer; and (2) to strike out as insufficient in law three affirmative defenses, the last of which is also labeled a counterclaim. Order modified by striking out from the decretal paragraph the provision denying the motion and by substituting therefor: (1) a provision granting the motion as to the third separate defense and counterclaim; (2) a provision denying the motion in. all other respects; and- (3) a provision granting leave to defendant, if so advised, to serve an amended answer.-' As so modified, *801order affirmed, with one bill of $10 costs and disbursements to plaintiffs. Defendant may serve his amended answer within 20 days after service of a copy of the order entered hereon. In our opinion, as it presently stands the third defense and counterclaim is insufficient in law (Civ. Prae. Act, §§ 61, 241, 261, 266), in that it fails properly to set forth new matter or an independent claim or cause of action for money damages based upon any legally cognizable ground. Beldock, Acting P. J., Christ, Pette and Brennan, JJ., concur.