Opinion
August 21, 1925.
Neil P. Cullom [ James E. Freehill of counsel], for the plaintiff.
Burlingham, Veeder, Masten Fearey [ Frank A. Bull of counsel], for the defendant.
1. The defense is defective in that it is clearly hypothetical to a degree that falls foul of the authorities. ( Saleeby v. Central R.R. of N.J., 40 Misc. 269; Stroock Plush Co. v. Talcott, 129 A.D. 14; Abt-Bernot, Inc., v. Holland-Amer. Line, 125 Misc. — It is also insufficient in that it pleads in the alternative in a situation that does not permit of alternative pleading. 2. The defense is also defective because of the failure to set out the facts upon which the alleged defenses are founded with respect to the exceptive clauses. ( Woodworth v. McBride, 3 Wend. 227.) The motion to strike out is granted, with leave to plead over upon the payment of costs if the facts are such as to warrant the defendant being so advised.