Opinion
December 17, 1920.
Charles H. Tuttle of counsel [ Carl E. Peterson with him on the brief], Thomas F. McMahon, attorney, for the appellant.
Arthur F. Driscoll of counsel [ Winfield Bonynge with him on the brief], O'Brien, Malevinsky Driscoll, attorneys, for the respondent.
The learned Special Term denied the motion with a memorandum as follows: "I think it is very plain that the defendant is protected by the denials." The proposed amended answer affirmatively alleges that the plaintiff had violated one of the provisions of the contract upon which plaintiff's action is based and also asks for damages by way of offset in the sum of $3,000 resulting from the breach on the part of the plaintiff's assignor of one of the conditions of the contract. It is not necessary for the court to determine upon this motion whether technically the defense may be litigated under a general denial, since considerable latitude is allowed parties to enable them to raise and have adjudicated every question affecting their interests and the subject-matter of the litigation. ( Muller v. City of Philadelphia, 113 App. Div. 92; Herbert v. De Murias, 115 id. 453; Washington Life Ins. Co. v. Scott, 119 id. 847; People v. Ostrander, 144 id. 860.)
The order is reversed, with ten dollars costs and disbursements to defendant, and the motion for leave to serve an amended answer is granted upon payment of taxable costs up to the date when the motion to amend the answer was made.
CLARKE, P.J., LAUGHLIN, DOWLING and MERRELL, JJ., concur.
Order reversed, with ten dollars costs and disbursements to appellant, and motion granted on payment by defendant of taxable costs up to date when motion to amend answer was made.