New York Court of Common Pleas February 15, 1865 (Hyde v. Van Valkenburgh)

Dalt, F. J.

I agree that the order made at Special Term should be reversed. The cases of Bovill v. Wood, 2 M. & S., 23, and Slocum v. Hooker, 13 Barb., 536, and Wilmsby v. Linclenberger, 2 Rand., 478, are decisive upon the point that a plaintiff cannot anticipate that a defendant will avail himself of a defence of this character.