Goldstein v. Shapiro

• Decision Date: 02 June 1931
• Citation: 177 N.E. 11,256 N.Y. 479
• Court: New York Court of Appeals Court of Appeals
• Parties: GOLDSTEIN v. SHAPIRO.

256 N.Y. 479

177 N.E. 11

GOLDSTEIN

v.SHAPIRO.

Court of Appeals of New York.

June 2, 1931.

Action by Samuel L. Goldstein against Jacob Shapiro. An order of Special Term striking out defenses in the amended answer as insufficient was affirmed by the Appellate Division (232 App. Div. 737, 247 N. Y. S. 998), and defendant appeals on certified questions.

The following questions were certified:

‘1. Is the first separate defense in the amended answer herein sufficient in law upon the face thereof?

‘2. Is the second separate defense in the amended answer herein sufficient in law upon the face thereof?’

Orders of Appellate Division and Special Term reversed, and motion denied, and questions answered.

Appeal from Supreme Court, Appellate Division, First department.

Allan S. Locke, of New York City, for appellant.

Samuel Gottlieb, of New York City, for respondent.

PER CURIAM.

The parties were the sole members of a copartnership, and by the terms of their agreement, annexed to the complaint and marked Exhibit A, they contracted that defendant would invest $4,000 in the business, that plaintiff would invest $11,000, and that all losses should be equally borne between them. The business was unsuccessful, and they assigned all their assets to trustees for the benefit of creditors. A copy of the agreement by which this assignment was made is annexed to the complaint and marked Exhibit B. In this action to recover from defendant his proportionate share of the losses sustained by the partnership, plaintiff alleges that he contributed capital in the sum of $13,854.50, and that defendant contributed only the sum of $4,600. In the answer, this allegation respecting the amount of plaintiff's contribution is denied, and by way of a second separate defense the answer alleges: ‘Sixth. Alleged on information and belief that as a condition of the execution of the Settlement Agreement Plaintiff's Exhibit ‘B’, by the plaintiff and defendant, it was agreed by and between them that they would and did release each other from any and all liability arising out of the copartnership agreement, plaintiff's Exhibit ‘A.” This defense has been stricken out as insufficient, but we think that, as matter of pleading, it is good. If the fact be proved on the trial that these parties agreed to release and forego whatever right each might possess against the other, the contract will be shown to be supported by a valid consideration.

The order of the Appellate Division and that of...