253 A.D. 837 | N.Y. App. Div. | 1938
Order granting motion by plaintiff to strike out the first and second defenses and the first and second partial defenses in the answer of defendant as being insufficient in law, modified by providing that the first defense shall be retained in the answer; as so modified the order is affirmed, without costs. Defendant may serve an amended answer within ten days from the entry of the order hereon. The defenses of waiver, consent, acquiescence and ratification, whether under the terms of the contract by practical interpretation of the parties or otherwise, or by subsequent conduct, may properly await the production of proof on the trial in respect to the validity thereof. The hypothetical form of pleading is not approved. Carswell, Davis and Close, JJ., concur; Hagarty and Adel, JJ., dissent as to modification and vote to affirm.
