Opinion
January 20, 1966
Appeal from the Erie Special Term.
Present — Williams, P.J., Bastow, Henry, Del Vecchio and Marsh, JJ.
Order, insofar as appealed from, unanimously reversed, without costs of this appeal to any party, and motion denied, without costs. Memorandum: Defenses contained in an answer should not be stricken unless they are clearly and unquestionably insufficient in law. This is not so in the case before us. The petitioner would have the factual issues decided on the pleadings and affidavits rather than upon proof in a plenary trial. This should not be done in this case.