Gourley v. Adams

Per Curiam. In this action to recover upon an agreement for contribution made among indorsers of a promissory note, certain ■'defenses were pleaded which have been attacked by this motion. The first defense is that the plaintiff is not the real party in interest. As pleaded the defense is bad under the decisions of this court in Ludlow v. Woodward (117 App. Div. 525) and General Investment Co. v. Interborough Rapid Transit Co. (200 id. 794). The third defense is that plaintiff was covered by security for the amount of the indebtedness involved in the complaint. As pleaded, however, the defense is insufficient because it does not allege that the security, which was given to cover a much larger indebtedness than that involved in the complaint, realized an amount which should have been applied toward payment of the obligation in suit. (See Brown v. Ray, 18 N. H. 102.) The defense is, therefore, insufficient. The eighth defense sufficiently sets out a plea of payment by the acceptance of other commercial paper, and the facts should be tried. The eleventh defense involves a plea of estoppel which is defective in that there is no allegation that the defendants relied on the facts set forth in the answer. The order should be modified by granting the motion to strike out the first, third and eleventh defenses, and as modified affirmed, with twenty dollars costs and disbursements to the appellant, with leave to replead the third defense if said defendants are so advised. Present — Finch, P. J., Merrell, Townley, Glennon and Untehmyer, JJ. Order modified by striking out the first, third and eleventh defenses, and as so modified affirmed, with twenty dollars costs and disbursements to the appellant, with leave to replead the third defense if defendants, respondents, are so advised.