Atlantic Gulf & Pacific Co. v. McIntosh & Seymour Corp.

218 A.D. 653, 219 N.Y.S. 112, 1926 N.Y. App. Div. LEXIS 5995

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 31, 1926
• Status: Published

Opinion

Per Curiam.

We think the complaint sets out a cause for deceit and that the damage is sufficiently alleged to come within the rule that the damages are such as are the natural consequence of the defendant’s act or default. Whether the precise rule of damage is invoked is not material to the question of whether or not a cause is alleged, and this must be left to the trial to determine. The defenses set out are not sufficient, admitting plaintiff’s claim, to defeat the cause by way of confession and avoidance, and consequently should have been struck out of the answer.

The order should, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, with leave to the defendant to serve an amended answer within twenty days from service of order upon payment of said costs.

Present — Clarke, P. J., Dowling, Merrell, McAvoy and Burr, JJ.; Merrell and Burr, JJ., dissenting.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to the defendant to serve an amended answer within twenty days from service of order upon payment of said costs.