Levenstein v. Muhlfeld

247 A.D. 795

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 15, 1936
• Status: Published

Opinion

Order of the County Court of Westchester county in so far as it grants a motion to strike out certain paragraphs of the answer, pursuant to rules 103 and 104 of the Rules of Civil Practice, modified by denying the motion with respect to paragraphs ninth, tenth, eleventh and fifteenth, and as so modified affirmed, without costs, with leave to defendant to serve an amended answer within ten days from the entry of the order herein. These paragraphs embrace a separate defense alleging merger of a cause of action based upon a promissory note brought in a foreign jurisdiction, and the defense seems to be good from the very nature of the complaint itself and the relief sought therein. (Gray v. Richmond Bicycle Co., 167 N. Y. 348.) We are of opinion that a determination as to the partial defense depends upon the facts and that it should not be struck out summarily. If it appears on the trial that the second cause of action relates to the same matter that was the subject of the Connecticut judgment, then these defenses are of no moment, since all litigated questions have been closed by that judgment. Lazansky, P. J., Young, Hagarty, Carswell and Davis, JJ., concur.