Desz v. Lincoln Savings Bank

On the court’s own motion the decision of this court handed down November 25,1940 [ante, p. 949], is amended to read as follows: Appeal by permission of this court from an order of the Appellate Term, reversing an order of the City Court of the City of New York, County of Queens, which denied plaintiffs’ motion to strike an affirmative defense from defendant’s answer, and granting the motion upon the ground that the defense is insufficient in law. Order of the Appellate Term reversed on the law and order of the City Court affirmed, with fifty dollars costs and disbursements in this court and ten dollars costs and disbursements in the Appellate Term. In our opinion, under the facts *1023here pleaded, the question of whether or not the plaintiffs waived the anticipatory breach or are estopped may be a question of fact to be determined upon the trial. Lazansky, P. J., Hagarty, Carswell, Adel and Close, JJ., concur.