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Goldberg v. Dougherty... Guardian Mutual Life Insurance Co., Worden v...

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511 Mayor, &c., of New York,
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547

283 Mayor, &c., of New York,

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Ketcham, Weston v....
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PAGE

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189 Lawrence, McMicken v....... 540
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317 Lindsay, O'Donnell v...
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Mayor, &c., of New York,
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549

CASES ARGUED AND DETERMINED

IN THE

SUPERIOR COURT

OF THE

CITY OF NEW YORK

AT GENERAL TERM.

JOHN SCHREYER, PLAINTIFF AND APPELLANT, 0. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, DEFENDANTS AND RESPONDENTS.

I. PLEADING,—ADMISSION BY, – -EFFECT OF.

1. When the defendant's pleading formally and explicitly admits that which establishes the plaintiff's right, he will not be suffered to deny its existence or to prove any state of facts inconsistent with that admission.

a. Thus, when the complaint avers that the contract sued on was made by the defendant, and the answer expressly admits such averment, the defendant can not be permitted to prove,

1. Either that the contract was not his, and that consequently he was not liable thereon.

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2. Or (there being no affirmative defense to that effect) that the contract, being fair on its face, was illegal.

2. ILLEGALITY OF CONTRACT,-DEFENSE OF MUST BE PLEADED,

WHEN.

1. When the complaint avers the making of a contract fair on its face, and the auswer admits such averment, the illegality of the contract can not be insisted on to defeat a recovery, unless such illegality is set up in the answer as an affirmative defense.

Before FREEDMAN, CURTIS and SPEIR, JJ.

Decided Feiruary 1, 1875.

Statement of the Case.

This action is brought to recover the eighth and last instalment upon a contract entered into by the defendants through the school trustees of the Tenth-ward of the city of New York, with the consent of the Board of Public Instruction of said city, with Alonzo Dutch, for the erection of a school-house. By the terms of the contract, it was to inure to the benefit of the Mayor, Aldermen and Commonalty of the city of New York. The contractor Dutch having failed, and having received the seventh instalment, leaving the eighth only unearned and unpaid, the plaintiff, with the consent of all parties, took an assignment of the contract from Dutch. This was recognized and assented to, and the plaintiff went on, furnished the materials and did the work necessary to earn the eighth and last payment. Thereupon the trustees and the Board of Public Instruction made the necessary certificates and requisitions upon the comptroller of the city of New York to require the payment of said three thousand dollars to the plaintiff, and so as to vest the money in the plaintiff-in other words, the Board of Public Instruction and the school trustees of the Tenth-ward and the plaintiff had performed all the conditions precedent to entitle the plaintiff to receive his money and to require the defendant to pay the same; and the comptroller had and has the money in hand to the credit of the Board of Public Instruction and the school trustees of the Tenth-ward.

Upon the trial plaintiff's complaint was dismissed, and defendants entered judgment.

The plaintiff appealed from the judgment.

D. M. Porter, counsel for appellant.

E. Delafield Smith and D. J. Dean, counsel for respondents.

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