Froggott v. Welsh

262 A.D. 771, 27 N.Y.S.2d 786, 1941 N.Y. App. Div. LEXIS 5802

Opinion

Action on a bond to recover for unpaid principal and interest. Order, which among other things struck out the third separate defense contained in the answer, on the ground that it is insufficient in law, modified on the law and the facts by striking out the second decretal paragraph, and, as thus modified, the order, in so far as appealed from, is affirmed, with ten doEars costs and disbursements to appellants. The sufficiency of the defense depends upon a finding of whether or not the extension agreement sued upon is under seal. That question should not be decided as matter of law where it appears that there is no recital in the instrument which evidences an intention to seal. (Transbel Investment Co. v. Venetos, 279 N. Y. 207.) Lazansky, P. J., Hagarty, Adel, Taylor and Close, JJ., concur.