The complaint does not state facts sufficient to constitute a cause of action, and for that reason the motion to dismiss the affirmative defense contained in the answer was properly denied. The complaint itself, however, cannot be dismissed because there was no counter-motion seeking that relief. (Bernard v. Chase Nat. Bank, 233 App. Div. 384.) The counterclaim is insufficient in facts to constitute a cause of action, - and should have been stricken out.
The order should, therefore, be modified by striking out so much thereof as dismisses the complaint; and by denying the motion to strike out the answer, except in so far as to dismiss the counterclaim, and as so modified affirmed, with twenty dollars costs and disbursements to the appellant, with leave to the defendants to serve an amended answer within ten days from service of the order to be entered hereon upon payment of said costs.
Present — Finch, P. J., Merrell, Townley, Glennon and Untermyer, JJ.; Untermyer, J., concurs in result; Merrell, J., dissents and votes to affirm the order appealed from in so far as it denies the motion to dismiss the counterclaim and defense, and to reverse said order in so far as it dismisses the complaint.