Opinion
January 24, 1941.
Appeal from Supreme Court, New York County.
Present — Martin, P.J., Glennon, Untermyer, Dore and Callahan, JJ.
The fourth and sixth affirmative defenses should not have been stricken out. In answer to the claim of plaintiff that the amount sued for was paid under protest, the defendant has attempted to show by these defenses that the money advanced by plaintiff for the increased premiums was paid voluntarily and without objection or protest and that there was no mistake of the parties which would justify the recovery by plaintiff of the money so paid. While defendant under its general denial could have presented, in all probability, proofs to sustain its position in this regard, nevertheless, the fourth and sixth affirmative defenses, as outlined, tend to clarify the issues.
The order, so far as appealed from, should be modified by denying the motion to dismiss the fourth and sixth affirmative defenses, and as so modified affirmed, with twenty dollars costs and disbursements to the defendants-appellants, with leave to the defendants-appellants to serve an amended answer within ten days after service of order.
Order, so far as appealed from, unanimously modified by denying the motion to dismiss the fourth and sixth affirmative defenses, and as so modified affirmed, with twenty dollars costs and disbursements to the defendants-appellants, with leave to the defendants-appellants to serve an amended answer within ten days after service of order.