208 A.D. 759 | N.Y. App. Div. | 1924
Giving to the defenses set up in the 2d and 3d subdivisions of the answer a liberal interpretation (Coatsworth v. Lehigh Valley R. Co., 156 N. Y. 451; Clark v. West, 193 id. 349), we cannot say that they fail to state equitable defenses within the principles declared in Murtfeldt v. N. Y., W. S. & B. R. Co. (102 N. Y. 703) and Conger v. N. Y., W. S. & B. R. R. Co. (120 id. 29). We, of course, do not now determine whether, upon the trial, the evidence produced under these defenses will justify a denial of the equitable relief demanded in the complaint. The defense set up in the 4th subdivision of the answer is sufficient, as alleging a subsequent agreement, inconsistent with the plaintiff’s present claim. The defense set up in the 5th subdivision of the answer is insufficient, as no subject of arbitration falling within the terms of the arbitration clause of the contract is shown to exist. The order should be modified by striking out the provision for a stay and by inserting after the words “ Ordered, that the said demurrer be, and the same hereby is, overruled,” the words: “ except as to the defense contained in the Fifth subdivision of the answer and as to such defense the demurrer is sustained,” and as so modified the order should be affirmed, without costs of this appeal to either party. All concur. Order modified so as to provide for sustaining the demurrer as to the defense set up in the 5th subdivision of the answer and as so modified affirmed, without costs of this appeal to either party.