Opinion
May 19, 1943.
Appeal from the Municipal Court of the City of New York, Borough of Manhattan, HAYES, J.
Julius Winn for appellant.
Samuel Wollan for respondent.
MEMORANDUM
A contingent or hypothetical pleading is improper. Such a pleading does not either deny or confess and avoid, as required by statute. ( Stroock Plush Co. v. Talcott, 129 A.D. 14.)
Order modified by granting plaintiff's motion to strike out the first and second defenses in answer, with leave to serve an amended answer within five days after service of order entered hereon, and as modified affirmed, without costs.
HAMMER, SHIENTAG and HECHT, JJ., concur.