222 A.D. 299 | N.Y. App. Div. | 1928
Plaintiff moved to strike out all the defenses in the answer upon the ground that none contain facts sufficient to constitute a defense.
The learned court at Special Term struck out defenses second, fourth and fifth, but denied the motion as to the first and third. There are cross-appeals therefrom by plaintiff, because the order refused to strike out the first and third defenses, and by the defendant, because the learned court struck out the second, fourth and fifth defenses.
The defenses in general refer to a contract which is alleged in the complaint to have been made between plaintiff’s assignor and defendant insurance company. This contract was for commissions on certain insurance premiums secured by the plaintiff’s assignor for the defendant and was to continue for a period of fifteen years from 1913. The suit covers a period from June, 1920, to June, 1926.
The first defense alleges that by reason of the declaration of war between France and Germany and because Scharnberg & Co. were enemy aliens of France with whom by the laws of France defendant was prohibited from carrying on any intercourse or to whom it was forbidden making any payments, all of said plaintiff’s assignor’s property was seized by the Sequester acting for the government of France. The suit is for an accounting and
The first defense, in effect, is that all the interest of Scharnberg & Co. was seized by the Sequester acting for and in behalf of the government of France. This defense would be good if the allegation further pleaded the laws of France governing the situation and alleged the facts showing that Scharnberg & Co. and this contract were subject to their provisions.
The third defense, which was also sustained, is that Scharnberg & Co., plaintiff’s assignor, was a copartnership and was declared to be comprised of enemy aliens, and at' the outbreak of war between Germany and France was, by operation of the laws and edicts of the government of France, dissolved; and further, by the terms and covenants of the agreement between the parties, defendant was to be liable for commissions only so long as Scharnberg & Co. existed. If this defense is proven and the war dissolved the partnership, then it will be a bar to an action by the contractor or his assignee. This defense has the same defects. It does not plead either the French statutes by which the matter is controlled or the facts showing plaintiff’s assignor subject thereto.
We think that the court at Special Term was correct in striking out the second, fourth and fifth defenses, but each of these defenses may be made good by a showing of the applicability of the French laws by pleading their terms and the duties, liabilities and penalties of the plaintiff’s assignor as enemy aliens thereunder.
Therefore, the order should be modified by striking out the first and third defenses, and as so modified affirmed, with ten dollars costs and disbursements to the plaintiff, but with leave to defendant to plead over the defenses set up in proper form, upon payment of said costs.
Dowling, P. J., Merrell, Finch and Proskauer, JJ., concur.
Order modified by granting plaintiff’s motion to strike out the first and third defenses, and as so modified affirmed, with ten dollars costs and disbursements to the plaintiff, appellant, and with leave to the defendant L’Urbaine Fire Insurance Company of Paris, France, to serve an amended answer within twenty days from service of order upon payment of said costs.
