Zeiberg v. Vineland Butter & Egg Corp. — 259 A.D. 825

Majority

p. 825

Celia Zeiberg, as Administratrix, etc., of Harry Zeiberg, Deceased, Appellant, v. Vineland Butter & Egg Corporation, Louis Helfer, Morris Weinberger, Joseph Picarsky and Isidore Brodsky, Respondents, and Others, Defendants.

Order denying plaintiff’s motion to strike out the second affirmative defense alleged in the answer of respondents, in so far as appealed from, affirmed, with ten dollars costs and disbursements. Concededly the plaintiff can establish no cause of action on the contract without proving the existence of sufficient surplus in the corporation and that the transfer of the stock to the corporation does not have the effect of reducing capital. The second affirmative defense seems rather a superfluity in view of the plaintiff’s burden of proof, but we affirm the order on the grounds (1) that the presence of the second affirmative defense does no harm and (2) the answer is good enough for a complaint which does not make entirely clear the respective liabilities of the various defendants. Lazansky, P. J., Carswell, Johnston, Adel and Close, JJ., concur.