266 A.D. 723 | N.Y. App. Div. | 1943
The allegations of the first defense are sufficient to the extent that it alleges that the agreement on which the action is brought was executed by the defendant in his capacity as receiver, notwithstanding that these facts could be established under the denials contained in the answer. (Home Ins. Co. v. Gillespie Loading Co., 222 App. Div. 67.)
To the extent that it is alleged that the receiver was released and discharged by the court, the allegations may be disregarded as surplusage.
We think the fourth defense should also be permitted to stand in order that the court at the trial may determine the exact scope and effect of the judgment in the earlier action in which it is alleged the same issues were or could have been adjudicated between the parties.
The order should be modified ¡by denying the motion to strike out the first and the fourth defenses and as so modified affirmed without costs.
Present — Martin, P. J., Untermyer, Dore, Cohn and Callahan, JJ.
Order unanimously modified by denying the motion to strike out the first and fourth defenses, and as so modified affirmed, without costs. i
