Opinion
March, 1932.
Present — Sears, P.J., Taylor, Edgcomb, Thompson and Crosby, JJ.
Order reversed on the law in so far as it denies the motion to strike out the second and third separate defenses, and affirmed in so far as it denies the motion to strike out the first separate defense, without costs of this appeal to either party, and motion granted striking out separate defenses second and third.
The motion to strike out the second and third separate defenses should be granted on the ground that the allegations therein contained are but evidentiary matter relating to compensatory damages. The first separate defense is retained for the reason that, while not scientific pleading, it at least inferentially traverses some of the allegations of the complaint, and while the matter therein contained would be admissible without being pleaded ( McClelland v. Climax Hosiery Mills, 252 N.Y. 347), it loses none of its efficacy by being pleaded as a separate defense. ( Morgan Munitions Supply Co., Inc., v. Studebaker Corporation of America, 226 N.Y. 94; Brisack v. King, 199 App. Div. 213. ) All concur.