Kaplan v. Girard Fire & Marine Insurance

There is no merit in the claim of lack of jurisdiction. Assuming the defense of rescission is an equitable one it is not necessary for a party relying upon such a defense to plead or establish a counterclaim for equitable relief or bring an action in equity for such relief. (Susquehanna S. S. Co. v. Andersen & Co., 239 *209N. Y. 285.) The City Court had jurisdiction to entertain such a defense; and the Appellate Division has decided that the defenses are sufficient. (Kaplan v. Girard Fire & Marine Ins. Co., 238 App. Div. 577.)

The trial judge erred, however, in excluding proof of the circumstances…