Opinion
March 6, 1939.
Action to enjoin the carrying out of a garbage dumping plan and for incidental relief. Order, in so far as it dismisses the complaint and the judgment entered thereon, reversed on the law, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs; defendants to answer within ten days from the entry of the order hereon. Although the complaint contains much irrelevant matter which may be treated as surplusage it contains allegations that a plan of the character described therein has been adopted by the defendants and is being carried out or is about to be carried out to the detriment of and invasion of the private rights of the plaintiff. Whether or not that which is alleged in the complaint is the fact may not be determined except upon a trial. The complaint, apparently drawn in haste, is somewhat inept, but it is sufficient as a matter of mere pleading. ( Kobbe v. Village of New Brighton, 23 App. Div. 243; O'Brien v. Town of Greenburgh, 239 id. 555; Cogswell v. N.Y., N.H. H.R.R. Co., 103 N.Y. 10.) Hagarty, Carswell, Johnston, Adel and Taylor, JJ., concur.