Vanetta Velvet Corp. v. Kakunaka & Co.

Full title: VANETTA VELVET CORP., Respondent, v. KAKUNAKA CO., LTD., Appellant

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Mar 8, 1939

256 App. Div. 341 (N.Y. App. Div. 1939)

Opinion

March 8, 1939.

Appeal from Supreme Court of New York County.

Milton Levin, for the appellant.

Herman Tocker of counsel [ Harold R. Lhowe with him on the brief], for the respondent.

Present — O'MALLEY, TOWNLEY, DORE, COHN and CALLAHAN, JJ.

PER CURIAM.

The fifth defense sufficiently alleges a modification of the agreement and the execution thereof as modified, and we think it was erroneously dismissed.

The disposition of the motion at Special Term was correct as to the remaining defenses and the counterclaim.

As to the first four defenses, the gist of which is impossibility of performance by reason of embargo effective through foreign law, the decisions of this court hold that such facts do not constitute a good defense. ( Richards Co., Inc., v. Wreschner, 174 App. Div. 484, and Krulewitch v. Nat. Importing Trading Co., Inc., 195 id. 544.) While the correctness of these decisions has been questioned at times (See 6 Williston on Contracts [Rev. ed.], § 1938; 2 Beale, Conflict of Laws, §§ 360.1, 360.2; Restatement of the Law of Contracts, § 461 and annotations), the courts of this State appear to have adhered to such rule. We do not find anything in the recent decisions of the Court of Appeals ( Sokoloff v. National City Bank, 239 N.Y. 158; 250 id. 69; Dougherty v. Equitable Life Assurance Society, 266 id. 71) that would require a contrary holding with respect to the facts pleaded in said defenses.

The order should be modified by denying the motion as to the fifth defense, and, as so modified, affirmed, without costs, with leave to the defendant to serve an amended answer with respect to the sixth and seventh defenses and the counterclaim within ten days after service of a copy of the order, with notice of entry thereof.

PER CURIAM.

Order unanimously modified by denying the motion to strike out the fifth defense, and, as so modified, affirmed, without costs, with leave to the defendant to serve an amended answer with respect to the sixth and seventh defenses and the counterclaim within ten days after service of a copy of the order with notice of entry thereof.