
    Jacob Cohen, Respondent, v. Francis H. Holmes, Appellant.
    First Department,
    April 9, 1920.
    Pleadings — answer — motion for leave to amend — defense inconsistent with original answer — amendment setting up counterclaim.
    Where a defendant sued for the breach of contracts to deliver goods admits the contracts by answer and as a defense pleads a modification thereof, he should not be allowed to serve an amended answer setting up as a new defense that the contracts were not his in that he was acting as agent for a disclosed principal, as such answer is wholly inconsistent with the original answer.
    However, the defendant should be allowed to amend so as to set up a counterclaim for the difference between the original contract price of the goods and the alleged purchase price thereof under a modification of the contracts, which amount the plaintiff agreed to pay to guarantors of the accounts who assigned their claims against the plaintiff to the defendant before the commencement of the action, it appearing further that while the defendant had recovered on the transaction constituting the counterclaim in the Municipal Court that judgment was opened and the action subsequently discontinued so that it could be set up as a counterclaim in the present action.
    Appeal by the defendant, Francis H. Holmes, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th day of January, 1920, denying defendant’s motion for leave to serve an amended answer.
    
      Bennett E. Siegelstein of counsel [William L. Stone with him on the brief], for the appellant.
    
      Isaac Steinhaus, for the respondent.
   Laughlin, J.:

The order recites that the motion was denied for laches and on the ground that the defendant failed to satisfy the court that the additional defense and counterclaim sought to be pleaded are meritorious. The action was commenced on the 23d of August, 1918, and issue was joined by the service of an answer on the thirtieth of September of that year. The action is brought to recover damages for breaches of two contracts. The breaches alleged are that the defendant failed to deliver to the plaintiff all of the goods he agreed to deliver. By the original answer, the defendant admitted that he made the contracts with the plaintiff and he pleaded modifications thereof. The proposed answer with respect to the defenses is wholly inconsistent with the original, for thereby defendant proposes to plead that the contracts were not his and that he was acting as agent for a disclosed principal. The order, therefore, in so far as it denies the motion to allow the service of an amended answer with respect to the new defenses was proper; but the defendant should be permitted to plead the proposed counterclaim, which is for the difference between the original contract purchase price of the goods delivered to the plaintiff and the alleged purchase price thereof under a modification of the contracts, which amount, it is alleged, plaintiff agreed to pay to L. F. Dommerich & Co., the guarantors of the accounts. It is alleged that that claim was duly assigned to the defendant by L. F. Dommerich & Co. before the commencement of this action. It appears that the defendant had brought an action against the plaintiff thereon, which was pending in the Municipal Court when this action was commenced and that for that reason it was not interposed as a counterclaim herein in the original answer. It further appears, however, that after the action in the Municipal Court was tried and judgment was rendered in favor of the defendant therein, the judgment was opened in order to enable the plaintiff to make further proof and, instead of doing so, the action was discontinued with a view to pleading that cause of action as counterclaim herein. We think, therefore, that the defendant should be permitted to plead the counterclaim, not, however, in the form proposed, but by adding it at the end of the defense to the second cause of action as originally pleaded.

The order is, therefore, modified by allowing the defendant to serve an amended answer consisting of the provisions of the original answer with the counterclaim added thereto as aforesaid upon payment of ten dollars costs of the motion, the date of issue to remain the same and without prejudice to the position of the cause on the calendar, and, as so modified, the order is affirmed, without costs.

Clarke, P. J., Dowling and Merrell, JJ., concur.

Order modified as directed in opinion and, as so modified, affirmed, without costs. Settle order on notice.  