Wolfman v. Kadel

250 A.D. 773, 293 N.Y.S. 982, 1937 N.Y. App. Div. LEXIS 8941

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 12, 1937
• Status: Published

Opinion

In an action to recover damages for wrongful eviction, the separate defenses in the defendants-appellants’ amended answer were struck out on plaintiffs’ motion. Order reversed on the law, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. The sufficiency of the first separate defense would seem to depend upon the nature and extent of plaintiffs’ proof. The facts therein alleged are competent; and any doubts as to whether they may be proved under a general denial should be resolved in favor of the pleader. (Clode v. Scribner’s Sons, 200 App. Div. 532; Morgan Munitions Co. v. Studebaker Corp., 226 N. Y. 94.) The matters alleged in the second separate defense seem to constitute at least a partial defense under article 8 of the Debtor and Creditor Law (Laws of 1928, chap. 833). In our opinion, it is at least questionable if the complaint alleges facts which, if deemed to be true, are sufficient to establish an actionable tort by these appellants. Lazansky, P. J., Hagarty, Carswell, Adel and Taylor, JJ., concur.