Summary
In Smith v. Graham (279 App. Div. 1051), in what appears to have been a somewhat similar situation (although I do not have the complaint in that case before me), the court held that the defendant should not be given leave to plead the defenses of res judicata and the Statute of Frauds.
Summary of this case from Schrier v. Kelloggs Pure FoodsOpinion
May 13, 1952.
Present — Callahan, J.P., Van Voorhis, Shientag, Heffernan and Bergan, JJ.
Order unanimously modified on plaintiff's appeal so as to eliminate the provision in the order permitting defendant to plead the defense of res judicata and the Statute of Frauds and, as so modified, affirmed, with $20 costs and disbursements to plaintiff. (See Potter v. Emerol Mfg. Co., 275 App. Div. 265. ) Having construed the complaint to be one in quantum meruit, the defenses have no logical place in the answer. If on the trial it should appear that plaintiff is attempting to recover on the contract rather than for the reasonable value of his services, an amendment to the answer would be allowable to present appropriate defenses. Settle order on notice.