Sielcken-Schwarz v. American Factors, Ltd.

Appellate Division of the Supreme Court of New York

Sielcken-Schwarz v. American Factors, Ltd.

240 A.D. 956

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

DecidedDecember 15, 1933

StatusPublished

This text of 240 A.D. 956 (Sielcken-Schwarz v. American Factors, Ltd.) 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.

Bluebook

Sielcken-Schwarz v. American Factors, Ltd., 240 A.D. 956 (N.Y. Ct. App. 1933).

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Opinion

While we are of opinion that, upon the affidavits here presented, the complaint may not be dismissed either on the plea of res adjudicata or upon the Statute of Limitations, we deem it advisable to permit facts constituting such alleged defenses to be pleaded in the answer as requested by the appellant. The defense of the Statute of Limitations will raise issues of fact; and in our opinion the defense of res adjudicata should not be finally determined until there has also been a full adducement of the facts. In the event of a judgment in favor of the plaintiff, the defendant by this procedure will be enabled to review all questions in one complete record. Order of April 20, 1933, modified by granting defendant leave to answer within thirty days from service of order upon payment of twenty dollars costs and disbursements of appeal to the respondent, and as so modified affirmed. Appeal from order of May 3, 1933, dismissed. Present — Finch, P. J., Martin, O’Malley, Townley and Glennon, JJ.

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While we are of opinion that, upon the affidavits here presented, the complaint may not be dismissed either on the plea of res adjudicata or upon the Statute of Limitations, we deem it advisable to permit facts constituting such alleged defenses to be pleaded in the answer as requested by the appellant. The defense of the Statute of Limitations will raise issues of fact; and in our opinion the defense of res adjudicata should not be finally determined until there has also been a full adducement of the facts. In the event of a judgment in favor of the plaintiff, the defendant by this procedure will be enabled to review all questions in one complete record. Order of April 20, 1933, modified by granting defendant leave to answer within thirty days from service of order upon payment of twenty dollars costs and disbursements of appeal to the respondent, and as so modified affirmed. Appeal from order of May 3, 1933, dismissed. Present — Finch, P. J., Martin, O’Malley, Townley and Glennon, JJ.

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240 A.D. 956, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sielcken-schwarz-v-american-factors-ltd-nyappdiv-1933.