Opinion
June 1, 1948.
In an action to set aside a separation agreement and a trust agreement on the ground that the same were induced by false representations, order denying appellant's motion to dismiss the first and second affirmative defenses contained in respondents' answer, pursuant to rules 103, 104 and 109 of the Rules of Civil Practice reversed on the law, with $10 costs and disbursements, and the motion granted, pursuant to subdivision 6 of rule 109 of the Rules of Civil Practice, without costs. In our opinion the defenses, as pleaded, are insufficient, in that they fail to allege knowledge on the part of the plaintiff sufficient to sustain a defense of ratification, estoppel or laches. Moreover, plaintiff, if otherwise entitled thereto, will not be denied equitable relief because she may be unable to restore respondents to the position formerly occupied by their intestate predecessor. The change in position which respondents assert by way of defense results from intestate's own acts following the making of the agreements, and not necessarily contemplated thereby. It is not alleged that such change of position has resulted from any action on the part of plaintiff subsequent to the making of the agreements in question. (See Butler v. Prentiss, 158 N.Y. 49; Hammond v. Pennock, 61 N.Y. 145.) Respondents may, if so advised, plead over within ten days after service of a copy of the order to be entered hereon and upon payment of $10 costs. Lewis, P.J., Carswell, Nolan, Sneed and Wenzel, JJ., concur.