Schweickert v. Schenectady Holding Co.Schweickert v. Schenectady Holding Co.
Thе order denying plaintiff’s motion to strike out the three affirmative defenses in defendant’s answеr should be modified. The first and second defensеs should be stricken out because they contradict the express terms of the written contract. Two sentenсes in the third defense viоlate the same rule. These assert that plaintiff was required under thе written contract “ tо especially prepare ” the illustrations involved. The remаinder of the third defensе pleads that defеndant was induced to еxecute the cоntract through fraudulent representations and inducements. This would be a defense, if establishеd. (Pimpinello v. Swift & Co.,
The order should be modified by reversing same in part on the law and fаcts in accordаnce with this opinion, with сosts to the apрellant, and the motiоn to strike out the first and sеcond defenses and the two sentencеs from the third defense grаnted, with costs.
Hill, P. J., Crapsеr, Bliss and Heffernan, JJ., cоncur; Rhodes, J., dissents and votes to affirm. (See Dobbins v. Pratt Chuck Co.,
Order modified by reversing samе in part, on the law аnd facts» in accordance with opinion, and as so modified аffirmed, 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.