Jones v. Bluestone

550 No opinion. Appeal from order, dated January 12, 1961, dismissed as academic; the amended answer was superseded by the second amended answer. Nolan, P. J., Ughetta, Christ and Brennan, JJ., concur; Beldoek, J., concurs in the dismissal of the order dated January 12, 1961, but dissents from the affirmance of the second order (dated March 8, 1961) and the judgment entered thereon, and votes to reverse such order and to deny the motion and to vacate the judgment, with the following memorandum: In my opinion, the defense of illegality was sufficiently pleaded (Coverly v. Terminal Warehouse Co., 85 App. Div. 488; O’Mara v. Dentinger, 271 App. Div. 22). In any event, defendant should be given an opportunity to replead so as to properly deny due performance on the part of the plaintiff.