Keon v. Saxton & Co.

227 A.D. 733

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 15, 1929
• Status: Published

Opinion

Order modified by denying the motion to strike out the first unnumbered defense (paragraphs 1 to 7, inclusive) and the second unnumbered defense" (paragraphs 8 and 9), and as so modified affirmed, with ten dollars costs and disbursements to appellant. (1) The first unnumbered defense sufficiently pleads ultimate facts with respect to claimed want of jurisdiction over defendant in the court rendering the judgment set out in the complaint-, which defense is available to defendant. (Scanlon v. Kuehn, 225 App. Div. 256.) (2) The same is true with respect to the second unnumbered defense, which includes the added element with respect to the claim of a Federal question being involved. (3) The third unnumbered defense is a mere general averment that plaintiff is not the real party in interest, and is insufficient for that reason as facts must be alleged with respect to this alleged defense. (Wenk v. City of New York, 82 App. Div. 584; Willey v. Cameron, Michel & Co., Inc., 217 id. 651, 653.) (4) The fourth unnumbered defense is insufficient. The consideration paid for the assignment, the purpose thereof, or the use to be made of the proceeds, is immaterial. (Spencer v. Standard C. & M. Corp., 237 N. Y. 479, 481.) (5) The fifth unnumbered defense and setoff is for unliquidated damages. Such damages are not available in a setoff. (Merry Realty Co., Inc., v. S. & H. R. E. Co., Inc., 186 App. Div. 538, 541.) It is insufficient as a defense in that it does not allege facts showing any damages legally recoverable. Lazansky, P. J., Young, Hagarty, Seeger and Carswell, JJ., concur.