136 N.Y.S. 287 | N.Y. Sup. Ct. | 1912
This is a motion made by the defendants Brown to strike out the answer of their codefendant Henry. The action is brought upon a written contract between the defendants Brown and the defendant Henry by the plaintiff as the assignee of a one-quarter interest in such contract. The complaint was served on the defendants Brown on June 7, 1910, and on the defendant Henry on June 6, 1910. The defendants Brown served their answer on September 14, 1910. The defendant Henry defaulted in appearing and pleading. The contract sued upon is dated June 9, 1909. The answer of the defendants Brown sets up that the contract sued upon was on the 19th of August, 1909, without notice to them of any rights of the plaintiff therein, abrogated, canceled and discharged by the consent of the parties thereto. The fact is that on August 19, 1909, the defendants Brown and the defendant Henry did sign a new agreement which in express terms declared itself to be “ in substitution of any and all former agreements.” The plaintiff on October 6, 1910, obtained an order for the examination before trial of the defendants Brown. This examination was resisted by the latter, but was allowed, the judge who denied the motion to vacate the order for such examination stating, among other things, in his opinion that he could find no ground for determining as a matter of law that the plaintiff could not recover upon the original contract. After the examination thus obtained and in January, 1912, the plaintiff moved for leave
Motion granted, with ten dollars costs.