Summary
In Giessler (supra) we expressly rejected Walther's analysis of Schindler and Rechtschaffen, and held that proof of defendant's criminal conviction for maintaining a nuisance would be admissible as prime facie evidence of the facts involved; and that, "to the extent that Roach v. Yonkers Railroad Co. (242 App. Div. 195) is in conflict with the Rechtschaffen case (supra), it must be deemed overruled."
Summary of this case from Montalvo v. MoralesOpinion
February 17, 1947.
In an action to enjoin defendant from operating its factory in such a manner as to constitute a nuisance, and for damages, plaintiffs alleged in paragraphs "Ninth" and "Tenth" of their complaint that defendant was convicted of a violation of section 1530 of the Penal Law, and that despite such conviction, it has done nothing to abate the nuisance and still conducts its business in such a manner as to constitute a nuisance. Defendant appeals from an order denying its motion to strike out those paragraphs as irrelevant, redundant and tending to prejudice, embarass or delay the fair trial of the action. Order affirmed, with $10 costs and disbursements, with leave to defendant to answer within ten days from the entry of the order hereon. Motions to strike out parts of a pleading as unnecessary and improper are not favored; and it may not be said that the Special Term abused its discretion in denying the motion, where the matters sought to be stricken out would be a proper subject of proof upon the trial of the action. ( Solomon v. LaGuardia, 267 App. Div. 435.) In our opinion, proof of defendant's conviction upon the charge of maintaining the nuisance alleged in the complaint would be admissible as prima facie evidence of the facts involved ( Matter of Rechtschaffen, 278 N.Y. 336); and, to the extent that Roach v. Yonkers Railroad Co. ( 242 App. Div. 195) is in conflict with the Rechtschaffen case ( supra), it must be deemed overruled. Lewis, P.J., Carswell, Johnston, Adel and Nolan, JJ., concur. [See post, p. 1017.]