first separate defense in New York

1933— Order in so far as it denies plaintiff’s motion to strike out the first separate defense in the answer reversed on the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, on authority of Randolph v. Field ( 165 App. Div. 279 ).

1933— Order in so far as it denies plaintiff’s motion to strike out the first separate defense in the answer reversed on the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, on authority of Randolph v. Field ( 165 App. Div. 279 ).

1961The first separate defense is one which may be properly pleaded (Mitchell v. A. A. Truck Renting Corp., 9 A D 2d 682; Bonsignore v. L & D Carriers, 24 Misc 2d 500 ; see Rauch v. Jones, 4 N Y 2d 592; Naso v. Lafata, 4 N Y 2d 585).

1960If defendant’s former husband was alive and his marriage to the defendant in full force and effect when she attempted to marry the plaintiff, such attempted marriage was absolutely void (Domestic Relations Law, § 6) and gives rise to no estoppel against the plaintiff (Landsman v. Landsman, 302 N. Y. 45 ).

1958(Purdy v. McGarity, 262 App. Div. 623, 625 .) Accordingly the motion to strike the first separate defense is denied.

1958(Real Property Law, § 242, Smith v. Smith, 214 App. Div. 383 ; Casolo v. Nardella, 275 App. Div. 502 , affg. 193 Misc. 378 .) Defendant contends that the first separate defense is not within the Statute of Frauds because of the allegations that with plaintiff’s knowledge and consent defendant made expensive and valuable permanent improvements in the premises to render them more suitable for defendant’s use as a rooming and boardinghouse so long as she wished, and that defendant operated the rooming and boardinghouse therein for 14 years pursuant to said agreement without objection by plaintiff

1958S. 2d 121, affd. 270 App. Div. 999 .) Under the circumstances, the first separate defense is insufficient in law and is stricken from the pleading.

1958(Real Property Law, § 242, Smith v. Smith, 214 App. Div. 383 ; Casolo v. Nardella, 275 App. Div. 502 , affg. 193 Misc. 378 .) Defendant contends that the first separate defense is not within the Statute of Frauds because of the allegations that with plaintiff’s knowledge and consent defendant made expensive and valuable permanent improvements in the premises to render them more suitable for defendant’s use as a rooming and boardinghouse so long as she wished, and that defendant operated the rooming and boardinghouse therein for 14 years pursuant to said agreement without objection by plaintiff

1958In the second separate defense, contained in paragraph “ 7 ” of the amended answer, defendant avers that the property involved in this action is the same as that involved in the action by the defendant against the plaintiff which was dismissed by the court ( 286 App. Div. 918 , supra); that this plaintiff’s right to possession and to partition were not litigated in that action and have not been determined, and that if plaintiff has any interest in the property, it is not one which will enable her to maintain this action in partition.

1946(See, also, Uggla v. Brokaw, 77 App. Div. 310 ; Wiley v. Village of Rouse’s Point, 86 Hun 495 ; cf. Stroock Plush Co. v. Talcott, 129 App. Div. 14 .) The first separate defense, as has been stated, is one of truth.

1946(See, also, Uggla v. Brokaw, 77 App. Div. 310 ; Wiley v. Village of Rouse’s Point, 86 Hun 495 ; cf. Stroock Plush Co. v. Talcott, 129 App. Div. 14 .) The first separate defense, as has been stated, is one of truth.

1946(See, also, Uggla v. Brokaw, 77 App. Div. 310 ; Wiley v. Village of Rouse’s Point, 86 Hun 495 ; cf. Stroock Plush Co. v. Talcott, 129 App. Div. 14 .) The first separate defense, as has been stated, is one of truth.

1945(International Text Book Co. v. Tone, 220 N. Y. 313 .) As to the second separate defense and requested stay, this court is bound by the case of Refrigeration & Air Conditioning Institute v. Bohn ( 185 Misc. 1032 [App. Term, 1st Dept.]).

1945(International Text Book Co. v. Tone, 220 N. Y. 313 .) As to the second separate defense and requested stay, this court is bound by the case of Refrigeration & Air Conditioning Institute v. Bohn ( 185 Misc. 1032 [App. Term, 1st Dept.]).

1934Co., 125 N. Y. 263 .) The first separate defense, therefore, falls.

1932Therefore, the ministerial officer was protected in obeying the order of discharge. {Levy v. Melody, 50 Misc. 509 .) Order modified to the extent of denying the motion to dismiss the first separate defense, and as modified affirmed, without costs.

1932(Morgan Munitions Supply Co., Inc., v. Studebaker Corporation of America, 226 N. Y. 94 ; Brisack v. King, 199 App. Div. 213 .) All concur.

1932They are, therefore, insufficient. (.Mattice v. Wilcox, 147 N. Y. 624, 634 .) The second partial defense is to the effect that the matter set forth in the first separate defense had "been communicated to the defendant by trustworthy persons and that the defendant had relied upon such information from such source, believing it to be true.

1932(Morgan Munitions Supply Co., Inc., v. Studebaker Corporation of America, 226 N. Y. 94 ; Brisack v. King, 199 App. Div. 213 .) All concur.

1932The first separate defense is retained for the reason that, while not scientific pleading, it at least inferentially traverses some of the allegations of the complaint, and while the matter therein contained would be admissible -without being pleaded (McClelland v. Climax Hosiery Mills, 252 N. Y. 347 ), it loses none of its efficacy by being pleaded as a separate defense.

1931(Agriculture and Markets Law, §§ 246 and 247; Spencer v. Huntington, 100 App. Div. 463, 466 ; Henricus v. Englert, 137 N. Y. 488, 494 .) If these views are sound, the first separate defense is insufficient in law, and should be stricken out.

1931(Agriculture and Markets Law, §§ 246 and 247; Spencer v. Huntington, 100 App. Div. 463, 466 ; Henricus v. Englert, 137 N. Y. 488, 494 .) If these views are sound, the first separate defense is insufficient in law, and should be stricken out.

1930In the matter before the Appellate Division, Mr. Justice Young, writing the opinion ( 227 App. Div. 448, 451 ), stated as follows: “ The appellant, however, should have an opportunity to amend its answer so as to allege facts showing a proper defense and counterclaim for the breach of the covenant of quiet enjoyment, if such facts exist." An amended answer has been interposed and in the 3d paragraph of the first separate defense of the amended answer it is alleged as follows: “ That in violation of the aforesaid covenant, the plaintiff would not permit the defendant, Marrillard Builders, Inc.,

1930(Baxter v. McDonnell, 154 N. Y. 432 .) The first separate defense sets forth the judgment dismissing the defense in the prior action.

1929In the first separate defense alleged in said answer the defendant alleges that plaintiffs’ causes of action are barred by a prior action brought for the same relief wherein the complaint was held as insufficient in law and was dismissed, and which dismissal was affirmed by the Court of Appeals' ( 210 App. Div. 22 ; 241 N. Y. 163 ).

1929Co., 222 App. Div. 299 .) The first separate defense alleged in the third amended answer here under review and which the court below held to be sufficient, denying plaintiff’s motion to strike out the same, was, in substance, the same defense set forth in the first answer to the plaintiff’s amended complaint, which was passed upon by this court on the first appeal above mentioned.

1929In the first separate defense alleged in said answer the defendant alleges that plaintiffs’ causes of action are barred by a prior action brought for the same relief wherein the complaint was held as insufficient in law and was dismissed, and which dismissal was affirmed by the Court of Appeals' ( 210 App. Div. 22 ; 241 N. Y. 163 ).

1929(Duval v. Wellman, 124 N. Y. 156 ; Tracy v. Talmage, 14 id. 162 ; 3 Williston Cont. § 1789.) The first separate defense to the second cause of action is, therefore, insufficient.

1929(Duval v. Wellman, 124 N. Y. 156 ; Tracy v. Talmage, 14 id. 162 ; 3 Williston Cont. § 1789.) The first separate defense to the second cause of action is, therefore, insufficient.

1925There can be no doubt that the parties understood that the plaintiff was to render services involving “ art, taste, fancy and judgment.” (Crawford v. Mail & Express Publishing Co., 163 N. Y. 404 .) The decision of the learned court at Special Term was based upon the decision of the Court of Appeals in Linton v. Unexcelled Fireworks Co. ( 124 N. Y. 533 ), holding that the said first separate defense was insufficient in law within said decision.

1925There can be no doubt that the parties understood that the plaintiff was to render services involving “ art, taste, fancy and judgment.” (Crawford v. Mail & Express Publishing Co., 163 N. Y. 404 .) The decision of the learned court at Special Term was based upon the decision of the Court of Appeals in Linton v. Unexcelled Fireworks Co. ( 124 N. Y. 533 ), holding that the said first separate defense was insufficient in law within said decision.

1913The language of this statute (section 15 of the General Corporation Law) is that no foreign stock corporation doing-business in this state “ shall maintain any action in this state on any contract made by it in this state ” before obtaining a certificate of authority; while section 181 of the Tax Law is broader in that its application is uot limited to any class of actions and the prohibition is expressed in the words: “Ho action shall be maintained or recovery had.” The court below correctly sustained defendant’s demurrer to the first separate defense to the first counterclaim on the ground t