Levan v. American Safety Table Co.

New York Supreme Court

Levan v. American Safety Table Co.

131 Misc. 779, 227 N.Y.S. 412, 1928 N.Y. Misc. LEXIS 737

DecidedFebruary 20, 1928

StatusPublished

This text of 131 Misc. 779 (Levan v. American Safety Table Co.) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Levan v. American Safety Table Co., 131 Misc. 779, 227 N.Y.S. 412, 1928 N.Y. Misc. LEXIS 737 (N.Y. Super. Ct. 1928).

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Opinion

Frankenthaler, J.

According to the allegations of the counterclaim it arose as part of the very transaction which forms the basis of plaintiff’s claim. It cannot, therefore, be said that it is improperly interposed. The same facts are set up both as a counterclaim and as a third separate and distinct defense. Although they do state a good cause of action by way of counterclaim, they do not state a good defense to the action. Plaintiff’s breach of the contract of employment does not preclude him from obtaining a rescission of his purchase of stock on the ground of fraud. The motion to strike out the third separate and distinct defense must, therefore, be granted. The fourth separate and distinct defense combines allegations of laches with others °of ratification, and if a good defense is stated on either of these grounds the motion to strike out the defense must be denied. The allegations that plaintiff “ has ratified and confirmed the same ” and received benefit thereof and thereunder sufficiently sets up a good defense of ratification. (Pollitz v. Wabash R. R. Co., 207 N. Y. 113, 131.) It is accordingly unnecessary to consider the validity of the defense on the theory of laches.

The motion is, therefore, granted to the extent of striking out the third defense, and otherwise denied.

Order signed.

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Frankenthaler, J.

According to the allegations of the counterclaim it arose as part of the very transaction which forms the basis of plaintiff’s claim. It cannot, therefore, be said that it is improperly interposed. The same facts are set up both as a counterclaim and as a third separate and distinct defense. Although they do state a good cause of action by way of counterclaim, they do not state a good defense to the action. Plaintiff’s breach of the contract of employment does not preclude him from obtaining a rescission of his purchase of stock on the ground of fraud. The motion to strike out the third separate and distinct defense must, therefore, be granted. The fourth separate and distinct defense combines allegations of laches with others °of ratification, and if a good defense is stated on either of these grounds the motion to strike out the defense must be denied. The allegations that plaintiff “ has ratified and confirmed the same ” and received benefit thereof and thereunder sufficiently sets up a good defense of ratification. (Pollitz v. Wabash R. R. Co., 207 N. Y. 113, 131.) It is accordingly unnecessary to consider the validity of the defense on the theory of laches.

The motion is, therefore, granted to the extent of striking out the third defense, and otherwise denied.

Order signed.

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Bluebook (online)

131 Misc. 779, 227 N.Y.S. 412, 1928 N.Y. Misc. LEXIS 737, Counsel Stack Legal Research, https://law.counselstack.com/opinion/levan-v-american-safety-table-co-nysupct-1928.

Opinion

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