Desz v. Lincoln Savings Bank

260 A.D. 949, 23 N.Y.S.2d 699, 1940 N.Y. App. Div. LEXIS 5579

Opinion

Appeal by permission of this court from an order of the Appellate Term, reversing an order of the City Court of the City of New York, County of Queens, which denied plaintiffs’ motion to strike an affirmative defense from defendant’s answer, and granting the motion upon the ground that the defense is insufficient in law. Order of the Appellate Term reversed on the law, and order of the City Court affirmed, with costs in this court and in the Appellate Term. In our opinion, under the facts here pleaded, the question of whether or not the plaintiffs waived the anticipatory breach or are estopped may be a question of fact to be determined upon the trial. Lazansky, P. J., Hagarty, Carswell, Adel and Close, JJ., concur. [174 Misc. 263. See post, p. 1022.]