Opinion
May, 1910.
F.S. Anderson, for defendant Hanover Realty and Construction Company.
J. Power Donellan, for defendant Dowling et al.
In a suit for the foreclosure of a mechanic's lien one defendant served an answer on a codefendant, as 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 be. 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. Ceballos, 49 A.D. 421), and a bill of particulars of any allegation in confession and avoidance would be an anomaly. The affirmative allegations of this so-called answer to an answer purports to be 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 bill of particulars of the allegations of that answer could be ordered on application of the codefendant. As the matter stands the motion must be denied.
Motion denied.