April 18, 1947.
Appeal from Supreme Court, New York County.
The matter alleged in the stricken paragraphs may be material evidence at the trial of the bona fides of the claims which plaintiffs forbore in consideration of the alleged agreement on defendants' part to hold plaintiffs harmless in their litigation with Goodwin. The matter is evidentiary, however, and not an essential part of the only cause of action asserted in the complaint, namely, a cause of action for breach of defendants' undertaking to assume responsibility for the result of the Goodwin litigation. The matter stricken, relating to a previous fraud and breach of another contract on defendants' part, should not become issues as such in this action by incorporation in the pleadings. If plaintiffs deem the complaint, as it remains, not sufficiently intelligible without some further description of the action instituted by Goodwin against plaintiffs, as alleged in paragraph twentieth of the complaint, and without an addition to paragraph twenty-first to the effect that the demand made upon defendants to assume responsibility for the Goodwin litigation was made by reason of plaintiffs' claim that defendants were liable in turn for the alleged fraud and breach of contract on which the Goodwin suit was based, they may amend their complaint with a concise statement to that effect.
The order appealed from should be affirmed, with $20 costs and disbursements to the respondents, without prejudice to the introduction as evidence at the trial of the matter stricken from the complaint.
The allegations stricken out set forth as conclusions of fact the basis of the forbearance and are material and relevant, indicating that the claim was made on reasonable grounds, in good faith and for good consideration. Accordingly, I dissent and vote to reverse the order appealed from and deny the motion.
Martin, P.J., Glennon, Cohn and Peck, JJ., concur in Per Curiam opinion; Dore, J., dissents and votes to reverse and deny the motion in opinion.
Order affirmed, with $20 costs and disbursements to the respondents without prejudice to the introduction as evidence at the trial of the matter stricken from the complaint. Settle order on notice.