Opinion
May 12, 1959
Order unanimously modified in the court's discretion to the extent of striking paragraph 4 from the amended complaint and, as so modified, affirmed, with $20 costs and disbursements to defendant. Plaintiff may, if so advised, serve an amended complaint within 20 days after service of the order entered herein with notice of entry thereof. Paragraph 4 consists solely of a conclusion of law and has no place in the complaint. More properly it would be a subject of the court's charge, provided the evidence so warrants.
Concur — Botein, P.J., Rabin, Valente, McNally and Stevens, JJ.