Opinion
December 31, 1926.
Appeal from Supreme Court of New York County.
David Paine of counsel [ Chester Bordeau with him on the brief; White Case, attorneys], for the appellant.
Allen McCarty of counsel [ William DeForest Manice and Donald B. Riker with him on the brief; Davisson Manice, attorneys], for the respondent.
Present — CLARKE, P.J., DOWLING, MERRELL, McAVOY and BURR, JJ.; MERRELL and BURR, JJ., dissenting.
We think the complaint sets out a cause for deceit and that the damage is sufficiently alleged to come within the rule that the damages are such as are the natural consequence of the defendant's act or default. Whether the precise rule of damage is invoked is not material to the question of whether or not a cause is alleged, and this must be left to the trial to determine. The defenses set out are not sufficient, admitting plaintiff's claim, to defeat the cause by way of confession and avoidance, and consequently should have been struck out of the answer.
The order should, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, with leave to the defendant to serve an amended answer within twenty days from service of order upon payment of said costs.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to the defendant to serve an amended answer within twenty days from service of order upon payment of said costs.