Bergin v. Anderson
217 A.D. 771
N.Y. App. Div.
1926
Check Treatment

Order dismissing complaint reversed upon the law and the facts, with ten doUars costs and disbursements, and motion for judgment on .the pleadings and to strike out the separate defenses in the reply denied, with ten doUars costs. We interpret the defenses in the reply as being an attempt on the part of the pleader to aUege that the so-eaUed written agreement of May 2, 1923, was never entered into by plaintiff as a contract for the doing of the work, and was not intended to supplant the contract of April 12, 1923, upon which plaintiff’s cause of action is predicated. The answer admits that “ during the construction of the said buüding ” the defendant directed certain important additions, and aE this was subsequent to the aUeged written contracts of May 2, 1923. The reply contains specific denials of aU of the aUegations of the counterclaim, excepting the payment of the sum *772which plaintiff alleges to have been made on account. Reading the pleadings together leads us to the conclusion that the reply should not be construed as admitting the contract to be that which defendant alleges. Kelly, P. J., Rich, Manning, Kapper and Lazansky, JJ., concur.