#### The Vacuum Cleaner Company, Appellant, *v.*The Broadway-Cortlandt Company and Hedden Construction Company, Respondents.

(Supreme Court, Appellate Term,

December, 1911.)

Judgment — Rendition—At particular, stages of the action — Motion for judgment on the pleadings — Severing action and ordering judgment on some counts.

Pleading —Answer or plea —Admissions —Admissions by failure to deny—Affirmative statement of inconsistent facts.

Where the complaint in an action sets up three separate causes of action, the -first being on an alleged express -contract for the installation of a vacuum cleaning system, and the second and third being for labor and materials furnished, and the answer does not contain a counterclaim or deny the facts alleged in the second and third causes of action but alleges that the system installed did not comply with the terms of the contract and that plaintiff failed to perform the same but substituted a system of less value, not capable of doing the required work, which did not exceed in value the amount already paid it, the answer is insufficient as a defense to the second and third causes of action; and, on motion by the plaintiff, the action should be severed, judgment on the pleadings in its favor should be granted on the second and third causes of action, and the action should be continued witn like effect as if it had been originally brought upon the first cause of action.alleged, only. .

Plaintiff appeals from an order of the City Court of the city of blew York denying its motion for judgment for the. amount demanded in the second and third causes of action alleged in the complaint and a severance of the action.

William E. Clare, for appellant.

Edward E. Clark, for respondent.

Seabury, J.

The complaint alleges three causes of action. The first cause of action alleged is based upon a written contract between the parties under which the plaintiff agreed to install a vacuum cleaner system. The’second and third *482causes of action are for labor and materials furnished. The . answers of the defendants deny performance of the contract alleged in the first cause of action. .The answers also plead as a complete defense to the causes of action set forth in the complaint that the Hedden Construction Company as agent for defendant entered into a contract with the plaintiff for the performance of certain work, etc.; that the system installed by the plaintiff did "not comply with the terms of said contract and that plaintiff failed to complete the terms of said contract, but substituted a plant or system of less value and not capable of doing* the work required to be done by the plant specified in the said contract and that the plant or system installed by the plaintiff did not exceed the sum of $5,000 in value, which said sum has been duly paid to the plaintiff.

The answer does not deny any of the allegations contained in the second and third causes of action as alleged in the complaint, and the matters alleged in the answers as a *“*separate and complete defense thereto ” constitute no defense in law to the second and third causes of action alleged in the complaint.

These two last mentioned causes of action stand admitted before the court. It follows that the learned court below should, under section 511 of the Code of Civil Procedure, have ordered that the action be severed, and that the plaintiff have judgment for the sums demanded in the second and third causes of action, and that the action be continued with like effect as if it had been originally brought upon the first cause of action alleged.

The learned court below denied the plaintiff’s motion upon the supposed authority of Cronin v. Tebo, 63 Hun, 190. That case is not, however, in point upon the question presented for determination. In that case the complaint set up two causes of action and the answer denied only the first cause of action but set up a counterclaim sufficient to extinguish both causes of action alleged; and it was held that, under such circumstances, a severance of the action was improper.

In the case at bar there is no counterclaim pleaded, and the alleged defense constituted no defense to the second and third causes of action alleged.

*483The order appealed from is reversed, with ten dollars costs and disbursements, and the motion is granted with ten dollars cost's; and it is ordered that the action be severed, and that the plaintiff have judgment for the sum demanded in the second and third causes of action alleged in the complaint, and that the action be continued with like effect as if it had been originally brought upon the first cause of action alleged in the complaint.

Lehman and Page, JJ., concur.

Order reversed.