Opinion
May, 1930.
Appeal from Supreme Court, New York County.
Present — Dowling, P.J., Merrell, Martin, O'Malley and Sherman, JJ. Order modified by granting motion to the extent of striking out the first alleged defense, and as so modified affirmed, with ten dollars costs and disbursements to the appellant, with leave to the defendant to serve an amended answer within twenty days from service of order upon payment of said costs.
The first separate defense is insufficient to establish a conditional delivery. Its effect is to show merely a condition subsequent and thus a variation of the terms of the written chattel mortgage sought to be foreclosed. The second defense is not subject to this criticism as it fairly pleads a condition precedent. It follows that the order appealed from should be modified by granting the motion to the extent of striking out the first alleged defense, and as so modified affirmed, with ten dollars costs and disbursements to the appellant, with leave to the defendant to serve an amended answer, if it be so advised, within twenty days from service of the order to be entered hereon upon payment of said costs.