Order reversed, with $10 costs and disbursements, and motion granted, with $10 costs. Memorandum: In an action on a series of promissory notes, the second affirmative defense alleges that by a fraud practiced upon a stranger with whom defendants have shown no connection, plaintiff was enabled to sell to defendants the shares of stock for which the notes were given. There is no claim of failure of consideration or that plaintiff’s title to the shares was defective.
Nor do defendants allege that they relied upon the alleged misrepresentation that it deceived them or was intended to do so, or that the notes in suit were procured by the fraud alleged in this defense. We think the defense is legally insufficient upon its face and must be stricken.
(Elliott v. Brady, 192 N. Y. 221, 225; Adamson v. Adamson, 251 App. Div. 187, 189; Cody v. Dempsey, 86 App. Div. 335, 340.) This is not a case of fraud upon the public at large (Flegenheimer v. Brogan, 284 N. Y. 268; Boddy-Eden v. Berle, 202 Misc. 261), nor is the contract sued upon itself illegal (Reiner v. North American Newspaper Alliance, 259 N. Y. 250; Sayres v. Decker Automobile Co., 239 N. Y. 73). It is unnecessary to consider plaintiff’s second motion, to strike - the same defense as sham and scandalous.
The order appealed from, so far as it denies the motion to dismiss the second affirmative defense as insufficient in law upon the face thereof, should be reversed and the motion granted.. All concur. (Appeal from an order of Monroe Special Term, denying plaintiff’s motion to strike out parts of defendants’ amended answer.) Present — McCurn, P. J., Vaughan, Kimball, Piper and Wheeler, JJ. [See post, p. 1216.]
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