Finnerty v. Frenchman

283 A.D. 970, 130 N.Y.S.2d 601, 1954 N.Y. App. Div. LEXIS 5950

Opinion

In an action to recover on a contract for a real estate broker’s services, order of the County Court, Westchester County, granting in part and denying in part plaintiff’s motion to strike out the separate defenses from the answer as insufficient in law modified as follows: In the first ordering paragraph, subdivision 2, the word “granted” and all following matter in said subdivision are struck out and the word “ denied ” is substituted therefor. The second and third ordering paragraphs are struck out and in place thereof there shall be added a paragraph providing that in all other respects the motion is denied. As thus modified the order is affirmed, without costs. The second defense, under liberal interpretation, is sufficient as a pleading, although the admissibility of evidence thereunder must be determined by the trial court under the relevant facts as they appear. The County Court, having held part of the fourth defense sufficient, should have allowed that defense to stand as pleaded. We do not pass upon the sufficiency of that defense in the absence of an appeal by the plaintiff. Nolan, P. J., Adel, Schmidt, Beldoek and Murphy, JJ., concur.