New Dorp Coal Corp. v. Frankel

254 A.D. 758, 4 N.Y.S.2d 211, 1938 N.Y. App. Div. LEXIS 7492

Opinion

On appeal by certain defendants in an action on a guaranty from an order striking out the three defenses pleaded in their amended answer, order affirmed, without costs. In affirming orders denying motions by the present appellants to dismiss the complaint as insufficient (252 App. Div. 760), this court so interpreted the contract and the guaranty thereof, on which the action is based, as to make it the law of the case that the present first defense of performance by the contractor is insufficient in law. The second defense, that the contract and the guaranty thereof were not assignable, has been abandoned on this appeal. The third defense, namely, that a certain award in an arbitration proceeding between the contractor (plaintiff’s assignor) and the other party to the contract is res judicata as to performance of the guaranteed contract, is insufficient in law. The facts alleged in the third defense in respect of the arbitration proceedings do not show an identity of issues between that proceeding and this action. Lazansky, P. J., Davis, Johnston, Adel and Taylor, JJ., concur.