Opinion
June, 1919.
Present — Jenks, P.J., Mills, Rich, Kelly and Jaycox, JJ. Order to be settled on notice before Mr. Justice Mills.
Judgment unanimously affirmed, with costs, upon the opinion of Mr. Justice Kelby at Special Term. (Reported in 105 Misc. Rep. 99.) It seems to us, however, that the trial justice erred in formally granting plaintiff's motion to strike out the defenses and the evidence which had been received to sustain them. We conclude that with the amendment thereto granted at the trial the third defense was sufficiently pleaded, and that if the trial court had credited defendant's evidence that plaintiff extended defendant's time for delivery past November twenty-fourth, a finding sustaining that defense would have been warranted; but it appears from the opinion that the trial justice nevertheless did consider and weight that evidence, and the same has been fully discussed here by counsel. Therefore, we restore that defense and evidence, and ourselves make the same findings and conclusions which the trial court made.