Opinion
May, 1930.
Order reversed upon the law and the facts, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, to the extent of striking out, as sham and frivolous, the denials in the 1st paragraph of the answer except as to the denials of the allegations contained in the 11th and 13th paragraphs of the complaint. The counterclaim is dismissed, with the privilege, however, to the respondent to serve an amended answer containing a counterclaim properly alleged, if it be so advised, within ten days after the entry of an order herein. The defendant may not plead a rescission of the contract and in the same alleged cause of action affirm the contract and sue for damages. ( Weigel v. Cook, 237 N.Y. 136; Merry Realty Co. v. Shamokin Hollis R.E. Co., 230 id. 316; Clark v. Kirby, 204 App. Div. 447.) Lazansky, P.J., Rich, Kapper, Hagarty and Scudder, JJ., concur.