Reginald C. Weeks and Harriet P. Hawkins, Appellants, v. Julia E. Lawless, Respondent, and Others, Defendants

Reginald C. Weeks and Harriet P. Hawkins, Appellants, v. Julia E. Lawless, Respondent, and Others, Defendants. [MAJORITY] Order denying motion to strike out the first separate defense in the answer of defendant Lawless affirmed, with fifty dollars costs and disbursements. The portion of the pleading attacked may properly be deemed an inept setting out of a counterclaim or setoff sufficient on its face as such. The facts and circumstances which will determine whether or not the said defendant may have the reimbursement sought under said counterclaim or setoff will necessarily be developed under the allegations of the complaint and the denials thereof, which in a proper case will create a right to reimbursement for disbursements made by one cotenant by way of improving the property sought to be partitioned. In a proper ease, where an equity arises in favor of a cotenant making such contributions, reimbursement to him is a prerequisite to the granting of relief to any cotenant who may be invoking the court’s aid in a partition action against such cotenant who has made such improvements. (Ford v. Knapp, 102 N. Y. 135, 140.) Lazansky, P. J., Kapper, Hagarty, Carswell and Davis, JJ., concur.