| N.Y. App. Div. | Jun 24, 1938
Order granting plaintiff’s motion to strike out the paragraphs of the answer which allege a separate defense modified by providing that the motion be denied as to plaintiff Murray Bernstein and granted as to the other two plaintiffs. As thus modified the order is affirmed, without costs. Order denying defendant’s motion to compel plaintiffs to serve a reply to the separate defense alleged in the answer modified by providing that the motion be granted as to plaintiff Murray Bernstein and denied as to the other two plaintiffs, and as thus modified affirmed, without costs. Plaintiff Murray Bernstein may serve a reply within five days from the entry of the order hereon. While it is true that the Municipal Court of the City of New York is without power to reform the terms of a written instrument, it appears from the allegations of the separate defense herein, which on these motions we deem to be true, that that court, in order to reach a decision in the action by plaintiff Murray Bernstein’s subrogee against the defendant herein, had of necessity to decide the issue of whether or not the release represented the true agreement between the parties. The issue thus appears to be res judicata as to plaintiff Murray Bernstein. A reply to the separate defense may define the issue for the convenience of the court and the parties. Lazansky, P. J., Davis, Johnston, Adel and Close, JJ., concur.