
    Nathan Strauss, Plaintiff, v. The Hanover Realty and Construction Company, The Bankers’ Surety Company, and John J. Dowling et al., Defendants.
    (Supreme Court, New York Special Term,
    May, 1910.)
    Mechanics’ liens — Foreclosure — Pleading—Answer — Answer to answer of codefendant.
    Pleading — Answer or plea — When proper — Answer to answer.
    One defendant may not serve upon another an answer to the latter’s answer, served under the provisions of section 521 of the Code of Civil Procedure; and a bill of particulars cannot be granted of a counterclaim attempted to be set up in an answer to an answer.
    If the former defendant wishes to set up a counterclaim against his codefendant, it should, it seems, be embodied in the former’s original answer and served upon the codefendant.
    Motion for bill of particulars.
    F. S. Anderson, for defendant Hanover Realty and Construction Company.
    J. Power Donellan, for defendant Dowling et al.
   Whitney, J.

In a suit for the forec' lOÍ a mechanic’s permitted by section 521 of the Code of Civil Procedure. The latter then served upon the former an answer to the answer, and is in turn served with a notice of motion for a bill of particulars. By section 522 of the Code each allegation of the answer first served was deemed controverted by traverse or avoidance, as the case ¡might he. In these respects our procedure differs from that in those Code States which provide for a cross-complaint by one defendant against the other. Hence, the answer to the answer was a document unknown to the law (see Havana City R. Co. v. Caballos, 49 App. Div. 421), and a bill of particulars of any allegation in conf ession and avoidance would be an anomaly. The affirmalien one defendant served an answer codefendant, as tive allegations of this so-called answer to an answer purports to he pleaded not only as a defense, but also as a counterclaim against the codefendant. The proper way to interpose a claim against a codefendant is to include it in the main answer and serve that answer. Perhaps in such a case a hill of particulars of the allegations of that answer could he ordered on application of the codefendant. As the matter stands the motion must he denied.

Motion denied.  