Opinion
May 5, 1933.
Appeal from Supreme Court of Schenectady County.
Louis Feldman [ Hamilton Lieb of counsel], for the appellant.
Leary Fullerton [ Walter A. Fullerton and John B. Lurie of counsel], for the respondent.
The order denying plaintiff's motion to strike out the three affirmative defenses in defendant's answer should be modified. The first and second defenses should be stricken out because they contradict the express terms of the written contract. Two sentences in the third defense violate the same rule. These assert that plaintiff was required under the written contract "to especially prepare" the illustrations involved. The remainder of the third defense pleads that defendant was induced to execute the contract through fraudulent representations and inducements. This would be a defense, if established. ( Pimpinello v. Swift Co., 253 N.Y. 159; Whipple v. Brown Brothers Co., 225 id. 237.)
The order should be modified by reversing same in part on the law and facts in accordance with this opinion, with costs to the appellant, and the motion to strike out the first and second defenses and the two sentences from the third defense granted, with costs.
HILL, P.J., CRAPSER, BLISS and HEFFERNAN, JJ., concur; RHODES, J., dissents and votes to affirm. (See Dobbins v. Pratt Chuck Co., 242 N.Y. 106.)
Order modified by reversing same in part, on the law and facts, in accordance with opinion, and as so modified affirmed, with costs to the appellant.
Motion to strike out the first and second defenses, and two sentences from the third defense, granted, with ten dollars costs.