Opinion
November 20, 1961
In actions by subcontractors to foreclose mechanics' liens and to recover money judgments, in which Malan Construction Corp., the general contractor, served an amended third-party complaint against Phoenix of Hartford Insurance Company, as surety, to recover, inter alia, damages as a result of the alleged failure of defendant Roreck Construction Co., Inc., to complete its subcontract, said Insurance Company appeals from an order of the Supreme Court, Westchester County, dated March 21, 1961, denying its motion as third-party defendant for leave to serve a supplemental third-party answer to the amended third-party complaint. Order reversed, with $10 costs and disbursements, and said third-party defendant's motion for leave to serve a supplemental third-party answer granted. Such supplemental answer shall be served within 20 days after entry of the order hereon. We do not pass on the sufficiency of the new affirmative defense sought to be pleaded in the proposed supplemental answer. That question should not be determined on a motion for leave to serve an amended pleading. The sufficiency of the defense may be more properly tested by a motion addressed directly to that question (cf. Vasile Son, v. Concrete Trans-Mix Corp., 1 A.D.2d 936). Nolan, P.J., Ughetta, Christ, Pette and Brennan, JJ., concur.