Haas v. Selig

MaoLean, J. (dissenting.)

In their answer to the allegations in the complaint herein for goods sold and delivered, the defendants'set up inartistically, perhaps purposely so, two defenses, setting them forth in individually numbered paragraphs, but not stating them as separate defenses. One was an allegation of evidentiary facts, tending to show that when the goods were in the possession of the sheriff, at the instance of other parties, the plaintiffs so acted as to evidence an election to repudiate the sale and treat the goods as still,within their ownership; and the other, an allegation of a specific agreement between the parties, of rescission. The first attempted defense was insufficient, but the second, substantially in the manner following, viz.: “ The plaintiffs claimed to have a right to rescind, and did rescind and wholly revoked, cancelled and annulled the said sale, and the defendants were entirely agreeable , that the plaintiffs should rescind, and permitted the plaintiffs to rescind the said contract of sale, and consented that the plaintiffs should take ' the said goods,” seems to me, in effect, to set forth a *506good defense by way of confession and avoidance, in that it is-an allegation of a new agreement -between, the parties, abrogating the one upon which this action is brought, and sufficient in matter, and form to preclude a successful demurrer or motion to strike out as frivolous (Clark v. Dillon, 97. N. Y. 370, 375, by Ruger, Ch. J.), and, therefore, the direction, of a verdict for the plaintiffs upon the pleadings by the justice at Trial Term, was erroneous.

The judgment should be reversed ■ and a new trial ordered, with costs to the appellants to abide the event.

Judgment affirmed, with costs to respondents.