Owens v. Owens , 1 A.D.2d 844 ( 1956 )

In an action for specific performance of a contract, or for alternative relief, the appeal is from an order denying appellant’s motion for judgment on the pleadings under rule 112 of the Rules of Civil Practice and section 476 of the Civil Practice Act. Order affirmed, with $10 costs and disbursements. Although we express no disagreement with the disposition of the motion at Special Term, insofar as it involved the defense of res judicata, pleaded in appellant’s answer, we call attention to the fact that the motion to dismiss, having been made on the pleadings, could not have been granted in any event, on the basis of the allegations contained in that defense which are deemed controverted by traverse or avoidance, as the ease requires. (Civ. Prac. Act, § 243; Gracie Square Realty Corp. v. Choice Realty Corp., 305 N. Y. 271, 278; Lipkind v. Ward, 256 App. Div. 74, 75.) The defense asserting the Statute of Frauds was properly before the court on the motion by reason of the admission in respondent’s bill of particulars that the contract alleged in the complaint was oral. The motion was properly denied, despite that defense, for the reasons stated at Special Term. (Cf. Day v. New York Central R. R. Co., 51 N. Y. 583, 590, and Katzman v. Aetna life Ins. Co., 309 N. Y. 197.) Nolan, P. J., Wenzel, Beldock, Murphy and Ughetta, JJ., concur.