
    Michael Rose, Appellant, v. The Village of White Plains, Respondent.
    
      Practice — contract — affirmative defense — reply.
    
    Motion for reargument.
   Per Curiam:

In the decision of the appeal herein, this court assumed that plaintiff’s motion made at the trial to amend his complaint had been granted. The record is somewhat obscure upon this point. In view of defendant’s assertion that such was not the fact, which seems to be acquiesced in by plaintiff, if the mistake made was of importance, the motion for reargument should be granted. But the result would be the same in either case. Plaintiff alleged full performance of the contract; defendant denied it. Not content with this denial, he further alleged a specific violation of the contract, calling it an “ affirmative defense.” In fact it was not such. But if it had been properly so described, no reply to it was necessary in the absence of an order therefor. The pleadings then presented questions of fact which could not be disposed of without proof. The motion for a reargument should be denied, without costs. If plaintiff deems it necessary to amend in the respect asked for at the trial, he may apply to the Special Term, which has power to grant the same upon such terms as shall be just. Jenks, P. J., HirsChberg, Burr, Thomas and Carr, JJ., concurred. Motion for reargument denied, without costs.  