Pomerantz v. Taylor , 248 A.D. 639 ( 1936 )

In an action to recover moneys in the hands of the defendant as trustee, the defendant interposed an answer containing an affirmative defense setting up the fact that he retained the moneys for compensation for his services as was his custom in these matters. The agreement was in writing and not ambiguous. Hence, custom may not be shown. The affirmative defense was, therefore, properly struck out. Order affirmed, with ten dollars costs and disbursements. Lazansky, P. J., Cars-well, Davis, Adel and Taylor, JJ., concur.