Jones v. Bluestone

Full title: CYRUS C. JONES, Respondent, v. LEONARD I. BLUESTONE, Appellant

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Jul 5, 1961

14 A.D.2d 549 (N.Y. App. Div. 1961)

Opinion

July 5, 1961

In an action to recover money due under a written contract, the defendant appeals: (1) from so much of an order of the Supreme Court, Nassau County, dated January 12, 1961, as granted plaintiff's motion, pursuant to rule 109 of the Rules of Civil Practice, to strike out the first and second defenses of defendant's amended answer, on the ground that they are insufficient in law; (2) from an order of said court, dated March 8, 1961, which granted plaintiff's motion for the same relief with respect to the defense in defendant's second amended answer, and for judgment on the pleadings pursuant to rule 112 of the Rules of Civil Practice; and (3) from the judgment of said court, dated March 10, 1961, entered upon the second order, in favor of plaintiff against defendant, for the sum of $8,100.90. Order dated March 8, 1961, and judgment affirmed, with $10 costs and disbursements. No opinion. Appeal from order, dated January 12, 1961, dismissed as academic; the amended answer was superseded by the second amended answer.

Nolan, P.J., Ughetta, Christ and Brennan, JJ., concur; Beldock, J., concurs in the dismissal of the order dated January 12, 1961, but dissents from the affirmance of the second order (dated March 8, 1961) and the judgment entered thereon, and votes to reverse such order and to deny the motion and to vacate the judgment, with the following memorandum:

In my opinion, the defense of illegality was sufficiently pleaded ( Coverly v. Terminal Warehouse Co., 85 App. Div. 488; O'Mara v. Dentinger, 271 App. Div. 22). In any event, defendant should be given an opportunity to replead so as to properly deny due performance on the part of the plaintiff.