Opinion
July 6, 1967
Order entered January 23, 1967, unanimously modified, on the law, by denying plaintiffs' application to strike the seventh affirmative defense, and as so modified affirmed, without costs or disbursements. For reasons which we have been unable to discern, counsel representing both parties have been most anxious to restrict the relief to be granted to that sought. So, despite the fact that it would appear that the determination of a question of law raised by the pleadings will decide the action, we have confined decision accordingly. We agree that the first six defenses either do not constitute a defense or the issues sought to be raised can be established under the denials of allegations of the complaint. The seventh defense raises the question of whether section 420 or section 422 Real Prop. Tax of the Real Property Tax Law is applicable to the situation presented. It may very well be that this question also can be raised under the denials pleaded, but the inclusion of the matter pleaded as a defense can neither prejudice nor embarrass plaintiffs. On the other hand, striking the defense might be considered as an indorsement of Special Term's views on the merits of the defense, and we do not wish to be so understood.
Concur — Eager, J.P., Steuer, Capozzoli, Rabin and McGivern, JJ.