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Horton v. Horton

31 N.Y.S. 588 Court N.Y. Gen. Term Decision date 1894-12-10 English

Delivered by CULLEN, J.

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p. 588
HORTON v. HORTON et al.
(Supreme Court, General Term, Second Department.
December 10, 1894.)

Headnote

Release—Necessity op Pleading.
A release of a cause of action is an affirmative defense, and must be-pleaded.
Appeal from special term, Westchester county.
Action by Delia Ann Horton against Stephen D. Horton and another for an accounting. The complaint was dismissed, and plaintiff appeals.
Reversed.
Argued before BROWN, P. J., and CULLEN, J.
Coleman & Donohue (Charles W. Coleman, of counsel), for appellant.
Wm. M. Du Bois, for respondents.

This is an appeal from a judgment rendered at the special term dismissing the plaintiff’s complaint. We have little doubt that the decision of the trial court was right, on the facts proved, and that it was justified in finding that the plaintiff" did execute the release despite her final statement to the contrary. But the plaintiff objected to the proof of the release, on the ground1 that no such defense was pleaded, and excepted to the ruling of the court admitting it in evidence. This objection was well founded.. A release of a cause of action is an affirmative defense, and must be pleaded. McKyring v. Bull, 16 N. Y. 297 ; Kirchner v. Sewing Mach. Co., 135 N. Y. 182 , 31 N. E. 1104 . The judgment appealed from should be reversed, and new trial ordered, costs to abide event.

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