
    (51 Misc. Rep. 664.)
    WHITEHEAD v. TRUSSED CONCRETE STEED CO.
    (Supreme Court, Appellate Term.
    November 14, 1906.)
    Accord and Satisfaction—Pleading—Setting up Fraud.
    Where a defendant presents an accord and satisfaction as a defense, under circumstances in which plaintiff could not be assumed to know that a defense would be interposed, plaintiff may be permitted to show fraud, vitiating the settlement, without any allegation thereof in a pleading.
    
      Appeal from Municipal Court, Borough of Manhattan, Eighth District.
    Action by James W. Whitehead against the Trussed Concrete Steel Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.
    Argued before GIEDERSLEEVE, DUGRO, and DOWLING, JJ.
    Adolph Hirsch Rosenfeld, for appellant.
    Hastings & Gleason, for respondent.
   PER CURIAM.

As the defendant presented accord and satisfaction as a defense, the learned trial justice quite properly allowed the plaintiff to show that fraud vitiated the settlement between the parties. It was not necessary that the plaintiff should have alleged the fraud in his pleading. He could not be assumed to have known that a defense would be interposed. The record shows no error requiring a reversal.

Judgment affirmed, with costs.  