Opinion
February 20, 1928.
Rudolph Marks Rodkinson [ Albert Adams of counsel], for the plaintiff.
William Klein [ I. Gainsburg of counsel], for defendants American Safety Table Co., Inc., and Louis Frankel.
According to the allegations of the counterclaim it arose as part of the very transaction which forms the basis of plaintiff's claim. It cannot, therefore, be said that it is improperly interposed. The same facts are set up both as a counterclaim and as a third separate and distinct defense. Although they do state a good cause of action by way of counterclaim, they do not state a good defense to the action. Plaintiff's breach of the contract of employment does not preclude him from obtaining a rescission of his purchase of stock on the ground of fraud. The motion to strike out the third separate and distinct defense must, therefore, be granted. The fourth separate and distinct defense combines allegations of laches with others of ratification, and if a good defense is stated on either of these grounds the motion to strike out the defense must be denied. The allegations that plaintiff "has ratified and confirmed the same" and received benefit thereof and thereunder sufficiently sets up a good defense of ratification. ( Pollitz v. Wabash R.R. Co., 207 N.Y. 113, 131.) It is accordingly unnecessary to consider the validity of the defense on the theory of laches.
The motion is, therefore, granted to the extent of striking out the third defense, and otherwise denied.
Order signed.