
    Michael Rose, Appellant, v. The Village of White Plains, Respondent.
    Second Department,
    October 20, 1911.
    Practice — dismissal at opening — new matter in defense deemed controverted without pleading — municipal contract — hours of labor.
    A defense, consisting of new matter not constituting a counterclaim is deemed controverted. The plaintiff without pleading may traverse or avoid it and is entitled to the benefit of every possible answer .to it the same as if pleaded. ■ ■ .
    Where in an action to recover a balance due on a municipal contract the answer alleged as a defense a' failure to comply with the contract in regard to the hours of employment of laborers, in consequence of which the contract became void, it is error to grant a motion made on the opening to dismiss the complaint upon the ground that plaintiff had violated . the contract in the manner alleged.
    Appeal by the plaintiff, Michael Rose, from a judgment of the County Court of Westchester county in favor of the defendant, entered in the office of the clerk of said county on the 2d day of June, 1910, upon the dismissal of the complaint by direction of the court upon the pleadings on the opening of a trial at the Westchester Trial Term.
    
      Humphrey J. Lynch, for the appellant.
    
      H. R. Barrett, for the respondent.
   Burr, J.:

Plaintiff sues to recover a balance due upon contract. Defendant by its answer admits the making of a contract with plaintiff, but alleges that under the terms thereof it was incumbent upon him as a condition precedent to demanding payment thereunder to obtain from the superintendent of highways and president of the village of White. Plains certificates in writing as to the completion of the work and file the same with the board of water commissioners, and that such certificates were not obtained and filed. The answer further alleged a failure to comply with the provisions of said contract respecting the hours of employment of laborers, workmen or mechanics, in consequence of which the contract became void. When the action was brought on for trial, a motion was made to dismiss the complaint upon the ground that plaintiff had not fulfilled the contract in respect to the obtaining of certificates, and had violated the same in respect to the other matters referred to. The motion was granted, and from the judgment thereupon entered plaintiff appeals.

It does not appear from the pleadings that the contract set up in defendant’s answer is the same contract which is the basis of plaintiff’s cause of action. From the argument of plaintiff’s counsel at the time that the motion was made, it would seem, however, that such was the case, for he asked to amend the complaint by alleging a waiver of the production of the certificates, and this motion was granted. There remained, then, as the basis of the motion, only the alleged violation of the contract respecting the employment of labor. • Without determining at the present time the' effect of such violation, it is sufficient to say that this was matter of proof and not of pleading. Defendant’s answer, set up an allegéd affirmative defense' and not a counterclaim. No order was obtained compelling a reply thereto. A defense consisting of new matter not constituting a counterclaim is deemed controverted, and plaintiff without pleading may traverse or avoid it and is ■ entitled to the benefit of every possible answer to it the same as if pleaded. (Nichols Pr. 987, § 883.) The judgment of the County Court of Westchester county should be reversed and a new trial, ordered, costs'to abide the event.

Jenks, P. J., Hirschberg, Thomas and Carr, JX, concurred.

Judgment of the County Court of Westchester county reversed and new trial ordered, costs to abide the event.  