Opinion
December, 1904.
William F. Kimber, for the appellant.
Gustav Lange, Jr., for the respondent.
The cases of Reitmayer v. Crombie ( 94 App. Div. 303) and O'Rourke v. U.S. Mortgage Trust Co. (95 id. 518) are authority for the proposition that where a recovery is sought upon the theory of a contract which has been performed, and wherein the answer denies full performance, a defendant is not required to give the particulars in which the plaintiff has failed to perform, and for the good and sufficient reason that such knowledge is as much within the possession of the plaintiff as of the defendant, and before the former can recover it will be necessary to prove full performance.
It will be noticed that, although the answer alleges that the defendant expended certain moneys for labor and materials in completing the contract and in the sale and delivery of certain flooring and planking, these are not pleaded as counterclaims, but are set up by way of offset, and no affirmative judgment is asked. They are undoubtedly good by way of defense, because to that extent they have a tendency to disprove the plaintiff's allegation of performance, but it is questionable whether, under the present Code of Civil Procedure, a defense by way of offset any longer exists in our practice. It is unnecessary, however, to decide that question here, because the facts stated, which tend to show that the defendant expended a large sum of money in completing the contract and sold and delivered to the plaintiff a certain amount of planking and flooring in connection therewith, would support the defense of non-performance. With respect to such defense, we think that the plaintiff is entitled to the particulars, but that with respect to all the other allegations of the answer which negative the claim of performance by the plaintiff, the defendant should not be required to give the particulars.
The order should accordingly be modified to the extent indicated, by requiring the defendant to furnish only the particulars specified in the paragraphs numbered 5th and 9th in the order, and as so modified it should be affirmed, without costs.
VAN BRUNT, P.J., INGRAHAM, McLAUGHLIN and HATCH, JJ., concurred.
Order modified as directed in opinion, and as modified affirmed, without costs.