J. P. G. Realty Corp. v. Rentways, Inc.

Order entered July 3, 1952, granting defendant’s motion for a bill of particulars and granting, in part, plaintiff’s cross motion to strike certain paragraphs of the answer is unanimously modified as follows: Items III, V, Vic, d, g, h, k, 1 and n of the notice of motion for a bill of particulars are eliminated and the words “ in detail ” are stricken from item Vila. The items stricken are eliminated under the pleadings, or are repetitious. So much of the order as denies the cross motion to strike paragraph VII of the answer is reversed, the cross motion is granted to that extent and the paragraph is stricken on the ground it is insufficient under rule 92 of the Rules of Civil Practice. So much of the order as grants the cross motion to strike “ the partial affirmative defense ” contained in paragraphs XIII to XVI is modified to the extent of eliminating the words “without prejudice to the defendant submitting a new lease as evidence on the trial to show that in fact the plaintiff suffered no damage ”, on the ground the language so eliminated is not necessary or proper. As so modified the order is affirmed, with $10 costs and disbursements to plaintiff. Settle order on notice. Order granting defendant’s motion for examination of plaintiff before trial unanimously modified to *929the extent of eliminating items 1, 3, 6, 11, 12, 14, 15, 17, 18, 25, 26 and 27 and, as so modified, affirmed, with $10 costs and disbursements to plaintiff, on the ground that the lessee is not discharged of his liability for breach of the covenant by reason of repairs paid 7or or made by the successor tenant (Appleton v. Marx, 191 N. Y. 81). Settle order on notice. Present — Dore, J. P., Cohn, Callahan and Breitel, JJ. [See 281 App. Div. 659.]