Goldner Trucking Corp. v. Stoll Packing Corp.

8 A.D.2d 951, 190 N.Y.S.2d 446, 1959 N.Y. App. Div. LEXIS 7541

Opinion

In an action to recover damages for breach of a written agreement for the leasing of certain motor vehicles, the appeal is from an order (a) denying appellant’s motion to compel respondent to reply to the second affirmative defense (Civ. Prae. Act, § 274), (b) granting respondent’s motion to strike out appellant’s first and second affirmative defenses and part of its third affirmative defense (Rules Civ. Prae., rule 109, subd. 6), and (c) modifying appellant’s notice to examine respondent before trial. ■ Order modified by inserting, after the word “ entirety ” in the first ordering paragraph, the words “ with leave to defendant to replead the second affirmative defense ”. As so modified, order affirmed, without costs. The amended answer is to be served, if appellant be so advised, within 10 days after the entry of the order hereon. In our opinion, appellant should be given an opportunity, if it so desires, to interpose a defense that the contract pleaded in the complaint is illegal. The second affirmative defense, as now drawn, does not so plead. Wenzel, Acting P. J., Beldoek, Murphy, Hallinan and ICleinfeld, JJ., concur. [16 Misc 2d 1065.]