Opinion
March 21, 1949.
In an action wherein plaintiffs seek to recover damages and an injunction because of (1) alleged violation of the zoning resolutions and (2) maintenance of a nuisance, plaintiffs moved pursuant to subdivision 6 of rule 109 of the Rules of Civil Practice to strike out the first, third, fourth, fifth, seventh and eighth separate defenses in the answer, and said motion was granted. Order modified on the law by striking from the second ordering paragraph the words "Third" and "Seventh" and, as so modified, the order is affirmed, without costs. The "Third" and "Seventh" defenses were improperly struck out. They allege facts which may be found to affect the right of the plaintiffs to an injunction. ( Home Ins. Co. v. Gillespie Loading Co., 222 App. Div. 67; Schwartz v. Klein, 272 App. Div. 834; Straus v. American Publishers' Assn., 103 App. Div. 277.) Carswell, Acting P.J., Johnston, Adel, Sneed and MacCrate, JJ., concur.