Opinion
December, 1913.
Present — Ingraham, P.J., Clarke, Scott, Dowling and Hotchkiss, JJ.
The complaint alleges in the 14th paragraph that Otto R.H. Ludewig "duly" assigned to plaintiff a certain claim against the defendant Andreas C. Bosselman and the judgment obtained thereon and which lies at the foundation of this action. The second separate defense consists of an attack upon those assignments as fraudulent and inoperative. Among other denials stricken out of this defense is the denial that Ludewig "duly" assigned the claim and judgment. The effect is to leave the defendants as admitting that the assignments were "duly" made. Whether the effect of this admission would be to nullify the second separate defense we need not now decide, but it is clear that defendant ought not to be forced into the position of relying upon an inconsistent defense which may be held to have been nullified by the involuntary admission of a fact which they seek to deny. The order appealed from will, therefore, be so modified as to strike out of the second defense all of the denials except that the assignments were "duly" executed. In other respects the order is right. It will, therefore, be modified in accordance with this memorandum, and as modified affirmed, without costs to either party.
Order modified as directed in opinion and as modified affirmed, without costs. Order to be settled on notice.