Industrial Capital Co. v. Haims

4 A.D.2d 866, 166 N.Y.S.2d 922, 1957 N.Y. App. Div. LEXIS 4239

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 22, 1957
• Status: Published

Opinion

Order unanimously modified to the extent of striking out the second and sixth defenses as insufficient in law with leave to serve an amended answer; and as so modified, affirmed. In this action by an alleged holder in due course of a series of promissory notes, the maker interposed six affirmative defenses which were sustained by Special Term as sufficient in law. The second and third defenses are predicated upon the same factual allegations, and plead, respectively, lack of consideration and failure of consideration. Those allegations, however, spell out a failure, rather than absence of consideration. Hence, the second defense, which is expressly based on lack of consideration, should have been eliminated. Moreover, the sixth defense, merely alleging that plaintiff is not the real party in interest, is conclusory and without factual support in the pleading. It should have been dismissed. (Keon v. Saxton & Go., 227 App. Div. 733.) Settle order. Concur — Peck, P. J., Breitel, Frank, Valente and McNally, JJ.