Opinion
May 11, 1961
Appeal from the Ontario Special Term.
Present — Williams, P.J., Bastow, Goldman, Halpern and Henry, JJ.
Orders unanimously reversed on the law, without costs of this appeal to any party and order entered dismissing the counterclaims, without costs, with leave to defendants to amend in accordance with the memorandum. Memorandum: One of the orders appealed from denies a motion to dismiss counterclaims and the other denies a motion to dismiss those parts of the counterclaims which demand money damages. The counterclaims seek to restrain the continuance of trespass and nuisance, with incidental damages. The motions were based upon the fact that the counterclaims do not allege compliance with section 341-b of the Village Law. The first motion should have been granted, with leave to amend to set up the equitable causes of action only and without the right to include a demand for money damages ( Schenker v. Village of Liberty, 261 App. Div. 54, affd. 289 N.Y. 788). The second motion would then have been unnecessary.