Machen Realty Corp. v. Mayper

Order modified so as to grant motion of defendants Mayper and Cohen'to strike out the portions of plaintiff’s reply referred to and specified in their notice of motion, and as so modified affirmed, with ten dollars costs and disbursements to appellants. We think the matter sought to be stricken out of the reply is plainly inconsistent with the allegations of the complaint, and constitutes a separate defense by way of avoidance of the counterclaim. It should, therefore, be stricken out. (See Streeter v. Cloud, 171 App. Div. 572.) Kelly, P. J., Manning, Young, Kapper and Hagarty, JJ., concur. Settle order on notice.