Rodgers v. Rodgers

203 A.D. 682, 197 N.Y.S. 494, 1922 N.Y. App. Div. LEXIS 7280

Opinions

Greenbaum, J.:

The Court of Appeals has interpreted the agreement upon which this action is based as a joint one (Rodgers v. Rodgers, 229 N. Y. 255), and we can find no ambiguity in the agreement which would justify us in permitting the defendants by answer in their first and second separate defenses to attempt to contradict its plain terms. The third separate defense is insufficient in that it fails to allege any consideration for the waiving, abandonment or rescission of the contract.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Clarke, P. J., and Merrell, J., concur; Smith and Finch, JJ., dissent.