Lynch v. Walsh

9 N.Y. St. Rep. 520

Opinion

Ehrlich. J.

The order dated December 29, 1886, is conditional only. The court below had the jurisdiction to make such an order upon the refusal or failure of defendant to comply with its former order; and I am inclined to the opinion, therefore, that in the present case, unless the first order should be found erroneous, both orders should be-sustained.

The matter objected to as irrelevant, was properly stricken out as such, for the reason that it stated no issuable fact in an issuable form; the same being alleged as an entire defense, could not be reached by demurrer, and the denial contained in the sixth clause of the answer afforded ample protection to the defendant.

It is quite clear that the discretion of the court below was properly exercised in requiring the defendant to make more definite the expression “sometime,” referring to his-admission of occupancy of the premises, for the rent of which the plaintiff seeks to recover.

The order should be affirmed, with costs.

Hall, J., concurs.