Opinion
November 29, 1948.
Present — Peck, P.J., Dore, Callahan, Van Voorhis and Shientag, JJ.
The complaint introduces the force majeure clause into the litigation, pleads its meaning and defendant's commitment and default thereunder. Defendant is entitled to plead, as it does in its first defense, the meaning of the force majeure clause under the circumstances surrounding its adoption, and that defendant's failure to make delivery was not its fault. Whether defendant's interpretation of the clause contradicts the writing can best be determined at the trial. Considered as a plea of mutual mistake and giving it the broadest possible intendment we think the second defense may also stand for trial. Order unanimously reversed, with $20 costs and disbursements to the appellant, and the motion denied.