Opinion
January, 1933.
Order striking out separate defenses in the answers of the two defendants reversed on the law, with one bill of ten dollars costs and disbursements, and the motion denied, with ten dollars costs, on the ground that the portions of the answers struck out are proper as a matter of pleading, and that the defendants may set up a justification of the alleged obstruction and nuisance by legal authorization and thereby show that it is not a nuisance in law. The question as to whether it constitutes a nuisance in fact, or that the defendants were in any respect negligent, may be established by the plaintiff on the trial. ( Weis v. Long Island Railroad Co., 235 App. Div. 253; John Wanamaker, New York, v. City of New York, 197 id. 441; affd., 233 N.Y. 652.) Lazansky, P.J., Kapper, Hagarty, Scudder and Davis, JJ., concur.