Marx v. Gross — 31 N.Y. St. Rep. 403

Majority

p. 403

Frederick Marx et al., App’lts, v. Eugene A. Gross et al., Resp’ts.

(New York Superior Court, General Term,

Filed May 5, 1890.)

Headnote

1. Pleading—Amendment.

The court, at special term, has power to allow an amendment to an answer setting up a new defense.

3. Same—Answer—Inconsistent defenses.

In an action for breach of contract the answer consisted of a general denial. The amended answer added an allegation that defendants were induced to make the contract by false representations. Held, that the defenses were inconsistent and that the general denial should be stricken out.

8. Same—Contract. •

The complaint alleged a breach of contract, in that since a certain day defendants refused and neglected to deliver goods. The answer alleged that defendants relied on the representations until the day named, when they discovered their falsity, and then refused to deliver any more goods at the price agreed upon. Held, that this was an allegation that they elected to rescind, and a good defense to the cause of action alleged in the . complaint.

p. 404

Appeal by plaintiffs from an order allowing defendants to serve an amended answer.

George A. Black, for app’lts; Wm. Bourke Cockran, for resp’ts.

The principal question argued at the general term, related to the power of the court at special term to allow an amendment setting up a new defense. We are of the opinion that the special term had the power to allow such an amendment. Smith v. Bodine, 74 N. Y., 35 ; Hatch v. Central National Bank, 78 id., 487.

The action was brought to recover damages .for a failure to deliver certain glycerine that plaintiffs had purchased from the defendants. The answer was in effect a denial of the making of the contract set forth in the complaint. The defendants asked to-amend their answer by setting up the defense that they were induced to make this contract by certain false -and fraudulent representations of the plaintiffs; the defendants also sought to recover as a counterclaim certain damages sustained by them by reason of such false and fraudulent representations. We are of the opinion that a good defense to the cause of action stated in the complaint and a good counterclaim were set forth in the amended answer.

It was alleged in the complaint that the breach of the contract took place after the 12th day of October, 1886. The allegation is in these words, “ since the said 12th day of October, 1886, the defendants have refused and neglected to deliver to the said plaintiffs any more of the said crude glycerine.”

The amended answer sets up the false and fraudulent representations made by plaintiffs and shows that defendants relied upon such representations and believed them to be true up to and on said 12th day of October. It then proceeds to state that subsequently to said 12th day of October, and on or about the 15th day of October, 1886, the defendants learned that said representations were false and fraudulent and then refused to deliver any more glycerine at the price agreed upon. This is in effect an allégation that the defendants elected to rescind the contract and constitutes a good defense to the cause of action set forth in the complaint. The amended answer contains two defenses it contains a denial of the making of the contract set forth in the complaint and an allegation that the defendants were induced to make the contract by the false and fraudulent representations of the plaintiffs. These two defenses are inconsistent and the order should be amended by striking out the general denial: as amended it is affirmed without costs to either party.

Dugro, J., concurs.