Opinion
June 3, 1910.
Herman Elfers, for the appellant.
Cromwell G. Macy, for the respondent.
Defendant appeals from an order which grants, only in part, his motion to serve a supplemental answer. The plaintiff and defendant were copartners and this action was begun in June, 1909, for a dissolution and accounting. Issue was joined on July 20, 1909. Subsequently the parties entered into a dissolution agreement in which the mutual rights and obligations of the parties, present and future, were set forth with considerable particularity. The defendant now seeks to serve a supplemental answer, containing three separate defenses. The first separate defense, which the court below has refused to allow to be interposed, sets up the dissolution agreement and avers that by reason thereof, if the plaintiff has any claim against defendant, he has an adequate remedy at law and that defendant is financially responsible, wherefore as it is alleged the plaintiff cannot maintain this action in equity. We are not advised of the grounds upon which the court below acted in refusing to allow this defense to be pleaded. It is quite obvious that the compromise agreement has so far changed the relations of the parties to each other and to the copartnership property that the appropriate relief cannot be given without taking into account that agreement, which, however, cannot be proven unless it is pleaded. ( National Gum Mica Co. v. Century Paint Wall Paper Co., 133 App. Div. 48.) What the precise effect of the compromise agreement will be upon the judgment, or whether it has the effect claimed by defendant, it is not necessary now to inquire. The defendant has a right to plead it, and to claim for it such force and effect as he sees fit. The second defense, which is also denominated a counterclaim, again sets out the dissolution agreement, and alleges that plaintiff has already violated it, whereby it is said the defendant has suffered damage which he seeks to recover. The learned justice before whom the motion was heard filed a memorandum permitting this defense to be pleaded in which he states that the defense "is not a counterclaim and needs no reply." No such qualification is to be found in the order which simply permits the defendant to serve a supplemental answer containing the separate and distinct defense. The expression of the opinion of the learned justice that this defense is not a counterclaim and calls for no reply, is not an adjudication and is not the subject of appeal, and in affirming so much of the order we do not express an opinion upon the efficacy of the defense as a counterclaim, or to the necessity of a reply thereto. A third separate defense was included in the proposed supplemental answer and was not allowed to be served. No appeal is taken in that regard.
The order appealed from must be reversed, with ten dollars costs and disbursements, and the motion granted in so far as to permit the service of a supplemental answer containing the first and second separate defenses as contained in the proposed supplemental answer.
INGRAHAM, P.J., McLAUGHLIN, CLARKE and DOWLING, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted to extent stated in opinion. Settle order on notice.