Winston v. Smoak ( 1944 )

Motion by plaintiff for judgment on the pleadings and for an order striking out certain separate defenses in the answer, and a motion made by defendants orally without previous notice for judgment on the pleadings. The portion of the order which strikes out certain defenses should be reversed, the sufficiency of those defenses should be determined upon a trial. For earlier litigation in this matter see Winston V. Saugerties Farms, Inc. [Smoalc] (287 N. Y. 718, affg. 262 App. Div. 435). Order modified on the law, by reversing paragraph numbered (2) which struck out defenses “ contained in paragraphs 7 to 24 inclusive of the answer”; “separate defenses alleged and set forth in paragraphs 7 to 18, inclusive, of the answer”; and separate defenses “ alleged and set forth in paragraphs 19 to 24, inclusive, of said answer ”; and as so modified the order is affirmed. The porton of the order which denies motions for summary judgment is affirmed, without costs. All concur. [See post, p. 1017.]