Opinion
April 13, 1971
Order, Supreme Court, New York County, entered October 8, 1970, granting plaintiff's motion to strike certain defenses, is unanimously modified, on the law, to the extent of reinstating the seventh, eighth and ninth defenses, and, as so modified, affirmed. Appellants shall recover of respondent $50 costs and disbursements of this appeal. The seventh affirmative defense alleges the 1966 Zolmar agreement is a nullity in that it was never intended to be enforceable. The ninth affirmative defense alleges said agreement was subject to a condition precedent. Defendants may show there was, in fact, no contract, and there was no consideration. ( Bernstein v. Kritzer, 253 N.Y. 410, 415-416.) The eighth affirmative defense alleges the 1966 Zolmar agreement is null and void in that it purports to effect a testamentary disposition contrary to law. Whether the allegedly void contract is severable presents a factual question. ( Central N Y Tel. Tel. Co. v. Averill, 199 N.Y. 128, 140-141.)
Concur — McGivern, J.P., Nunez, Kupferman, McNally and Tilzer, JJ.