History
  • No items yet
midpage
Schweickert v. Schenectady Holding Co.
238 A.D. 220
N.Y. App. Div.
1933
Check Treatment
Per Curiam.

The order denying plaintiff’s motion to strike out the three affirmative defenses in defendant’s answer should be modified. The first and second defenses should be stricken out because they contradict the express terms of the written contract. Two sentences in the third defense violate the same rule. These assert that plaintiff was required under the written contract “ to especially prepare ” the illustrations involved. The remainder of the third defense pleads that defendant was induced to execute the contract through fraudulent representations and inducements. This would be a defense, if established. (Pimpinello v. Swift & Co., 253 N. Y. 159; Whipple v. Brown Brothers Co., 225 id. 237.)

The order should be modified by reversing same in part on the law and facts in accordance with this opinion, with costs to the appellant, and the motion to strike out the first and second defenses and the two sentences from the third defense granted, with costs.

Hill, P. J., Crapser, Bliss and Heffernan, JJ., concur; Rhodes, J., dissents and votes to affirm. (See Dobbins v. Pratt Chuck Co., 242 N. Y. 106.)

Order modified by reversing same in part, on the law and facts» in accordance with opinion, and as so modified affirmed, with costs to the appellant.

Motion to strike out the first and second defenses, and two sentences from the third defense, granted, with ten dollars costs.

Case Details

Case Name: Schweickert v. Schenectady Holding Co.
Court Name: Appellate Division of the Supreme Court of the State of New York
Date Published: May 5, 1933
Citation: 238 A.D. 220
Court Abbreviation: N.Y. App. Div.
AI-generated responses must be verified and are not legal advice.
Your Notebook is empty. To add cases, bookmark them from your search, or select Add Cases to extract citations from a PDF or a block of text.