
    The Garfield National Bank, Respondent, v. George W. Kirchwey, Appellant.
    (City Court of New York, General Term,
    June, 1896.)
    Pleading — Defenses. ' (
    A defendant has a right to plead new matter both as a defense and as a counterclaim, provided he pleads them separately, fully stating each in a séparate subdivision of the answer, properly numbered and folioed. . .
    Appeal from order granting motion to compel defendant to make his amended answer more definite and certain.
    John J. Adams, for respondent.
    Hector M, Hitchings, for appellant. •
   Van Wyck, Ch. J.

The. defendant’s original answer labeled his affirmative plea-as “a defense* set-off, recoupment, cause of action, and counterclaim .to the matters alleged in the complaint,” and to this plaintiff objected, and properly sought and obtained, on motion,-an order compelling defendant to make his answer more definite and certain by separately stating each and every defense or counterclaim. This order the defendant had fully obeyed when he served ah amended answer by the second subdivision of which he set forth as follows, further' answering by way of defense,” and by the third subdivision of which he says, “ further answering, by way of counterclaim.” The first is an allegation of new mattér by way of defense, and the latter is good pleading by Way of" counterclaim, .and each is properly labeled. ■ To the first, plaintiff may be- compelled to reply- on defendant’s application, and to the latter he will be in default unless he replies, and either or both are open to his demurrer, for each is fully stated in separate subdivisions of the answer, properly, numbered and folioed. However, plaintiff sought and obtained the order, from which this appeal 'is taken, directing defendant to serve another and further amended answer, setting out the affirmative matter “ in such manner as to enable plaintiff to ascertain whether the same is intended to be pleaded by way of defense or counterclaim.” The plaintiff had already plead the new matter, as a defense and as counterclaim, and this he had the right to do under the Code, provided' he plead them separately, fully stating each in a separate subdivision of ■ the answer, properly numbered and folioed. This second motion should have been denied. The order is reversed, with costs, and the original motion denied, with $10 costs.

Conlan, J., concurs..

Order reversed, with costs, and motion denied, with $10 costs.  