Horton v. Horton — 64 N.Y. St. Rep. 142

Majority

p. 142

Delia Ann Horton, App’lt, v. Stephen D. Horton et al., Resp’ts.

(Supreme Court, General Term, Second Department,

Filed December 10, 1894.)

Headnote

Pleading—Answer—Affirmative defense.

A release of a cause of action is an affirmative defense and must be pleaded.

Appeal from a judgment dismissing the complaint.

Coleman & Donohue (Charles W. Coleman, of counsel), for app’lt; Wm. M. Du Bois, for resp’ts.

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 ground 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. N. H. Sewing Mach. Co., 185 N. Y. 182 ; 48 St. Rep. 242 .

The judgment appealed from should be reversed, and new trial ordered, costs to abide event.

Cases cited

McKyring v. Bull 16 N. Y. 297 N.Y. p. 142