Stafford v. John W. Cowper Co.

256 A.D. 894, 9 N.Y.S.2d 109, 1939 N.Y. App. Div. LEXIS 5276

Opinion

Order affirmed, with ten dollars costs and disbursements. Memorandum: The inquiry upon this motion is whether the first and second defenses alleged in the answer in truth present an issue to be tried. The affidavit submitted by the plaintiff in support of his motion to strike out these defenses as sham and as tending to prejudice a fair trial of the action, was properly received (Fleischer v. Terker, 259 N. Y. 60; Socony-Vacuum Oil Co., Inc., v. City of New York, 247 App. Div. 163), and being uncontradieted leads to an affirmance of the order. All concur. (The order grants plaintiff’s motion to strike out certain defenses in defendant’s amended answer in a negligence action.) • Present — Sears, P. J., Crosby, Lewis, Taylor and Dowling, JJ.