Frank v. Papa

Appellate Division of the Supreme Court of New York

Frank v. Papa

264 A.D. 896, 35 N.Y.S.2d 849, 1942 N.Y. App. Div. LEXIS 5291

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 29, 1942

StatusPublished

This text of 264 A.D. 896 (Frank v. Papa) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Frank v. Papa, 264 A.D. 896, 35 N.Y.S.2d 849, 1942 N.Y. App. Div. LEXIS 5291 (N.Y. Ct. App. 1942).

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Opinion

In an action to recover damages for the breach of an alleged written contract of employment, order denying plaintiff’s motion to strike out as insufficient in law the third and fourth defenses in the answer, modified on the law by striking out the first decretal paragraph thereof and substituting therefor the folio-wing: “ Ordered, that the motion be and the same hereby is granted to the extent that the third defense contained in paragraphs numbered ‘ 9 ’ to ‘ 13,’ inclusive, of the answer, and the fifth defense in the paragraph secondly numbered 1 14 ’ of the answer, are struck out.” As so modified, the order, in so far as appealed from, is affirmed, without costs. The plea of justification alleged in the third defense for the termination of the alleged “ oral understanding ” as a bar to the cause of action pleaded does not avoid plaintiff’s right to recover, since plaintiff’s claim is predicated upon a written contract of employment and the breach thereof by defendant. Therefore, it was error not to strike out the third defense. Lazansky, P. J., Hagarty, Carswell, Johnston and Adel, JJ., concur.

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In an action to recover damages for the breach of an alleged written contract of employment, order denying plaintiff’s motion to strike out as insufficient in law the third and fourth defenses in the answer, modified on the law by striking out the first decretal paragraph thereof and substituting therefor the folio-wing: “ Ordered, that the motion be and the same hereby is granted to the extent that the third defense contained in paragraphs numbered ‘ 9 ’ to ‘ 13,’ inclusive, of the answer, and the fifth defense in the paragraph secondly numbered 1 14 ’ of the answer, are struck out.” As so modified, the order, in so far as appealed from, is affirmed, without costs. The plea of justification alleged in the third defense for the termination of the alleged “ oral understanding ” as a bar to the cause of action pleaded does not avoid plaintiff’s right to recover, since plaintiff’s claim is predicated upon a written contract of employment and the breach thereof by defendant. Therefore, it was error not to strike out the third defense. Lazansky, P. J., Hagarty, Carswell, Johnston and Adel, JJ., concur.

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Bluebook (online)

264 A.D. 896, 35 N.Y.S.2d 849, 1942 N.Y. App. Div. LEXIS 5291, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frank-v-papa-nyappdiv-1942.