Schweickert v. Schenectady Holding Co.

Appellate Division of the Supreme Court of New York

Schweickert v. Schenectady Holding Co.

238 A.D. 220, 265 N.Y.S. 158, 1933 N.Y. App. Div. LEXIS 9466

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 5, 1933

StatusPublished

Cited by2 cases

This text of 238 A.D. 220 (Schweickert v. Schenectady Holding Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Schweickert v. Schenectady Holding Co., 238 A.D. 220, 265 N.Y.S. 158, 1933 N.Y. App. Div. LEXIS 9466 (N.Y. Ct. App. 1933).

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Opinion

Per Curiam.

The order denying plaintiff’s motion to strike out the three affirmative defenses in defendant’s answer should be modified. The first and second defenses should be stricken out because they contradict the express terms of the written contract. Two sentences in the third defense violate the same rule. These assert that plaintiff was required under the written contract “ to especially prepare ” the illustrations involved. The remainder of the third defense pleads that defendant was induced to execute the contract through fraudulent representations and inducements. This would be a defense, if established. (Pimpinello v. Swift & Co., 253 N. Y. 159; Whipple v. Brown Brothers Co., 225 id. 237.)

The order should be modified by reversing same in part on the law and facts in accordance with this opinion, with costs to the appellant, and the motion to strike out the first and second defenses and the two sentences from the third defense granted, with costs.

Hill, P. J., Crapser, Bliss and Heffernan, JJ., concur; Rhodes, J., dissents and votes to affirm. (See Dobbins v. Pratt Chuck Co., 242 N. Y. 106.)

Order modified by reversing same in part, on the law and facts» in accordance with opinion, and as so modified affirmed, with costs to the appellant.

Motion to strike out the first and second defenses, and two sentences from the third defense, granted, with ten dollars costs.

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Per Curiam.

The order denying plaintiff’s motion to strike out the three affirmative defenses in defendant’s answer should be modified. The first and second defenses should be stricken out because they contradict the express terms of the written contract. Two sentences in the third defense violate the same rule. These assert that plaintiff was required under the written contract “ to especially prepare ” the illustrations involved. The remainder of the third defense pleads that defendant was induced to execute the contract through fraudulent representations and inducements. This would be a defense, if established. (Pimpinello v. Swift & Co., 253 N. Y. 159; Whipple v. Brown Brothers Co., 225 id. 237.)

The order should be modified by reversing same in part on the law and facts in accordance with this opinion, with costs to the appellant, and the motion to strike out the first and second defenses and the two sentences from the third defense granted, with costs.

Hill, P. J., Crapser, Bliss and Heffernan, JJ., concur; Rhodes, J., dissents and votes to affirm. (See Dobbins v. Pratt Chuck Co., 242 N. Y. 106.)

Order modified by reversing same in part, on the law and facts» in accordance with opinion, and as so modified affirmed, with costs to the appellant.

Motion to strike out the first and second defenses, and two sentences from the third defense, granted, with ten dollars costs.

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238 A.D. 220, 265 N.Y.S. 158, 1933 N.Y. App. Div. LEXIS 9466, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schweickert-v-schenectady-holding-co-nyappdiv-1933.

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