Grady v. Madison Avenue Coach Co.

Action to recover damages for personal injuries. Order denying plaintiff’s motion to strike out a separate defense based on an alleged covenant not to sue, contained in a pass issued by the defendant to the plaintiff, reversed on the law, without costs, and the motion granted, with ten dollars costs, with leave to the defendant to plead over within ten days from the entry of the order hereon. The amended complaint did not disclose that the relationship of passenger and carrier existed between the plaintiff and the defendant. The defense challenged contained no factual allegation that such relationship existed. Hence the defense *720is without relevance and insufficient in law on its face. (3 Shearman and Redffeld on Negligence [Rev. ed.], § 512.) Lazansky, P. J., Carswell, Adel, Taylor and Close, JJ., concur.