The second defense, that the plaintiffs conspired to violate the statutes and regulations in respect of ceiling prices of the tractor here involved and to induce the defendant to violate the same, is insufficient in law. It does not contain factual allegations of deceit or positive fraud perpetrated by plaintiffs on the defendant. The conclusory character of its allegations precludes interpreting the language thereof as having such a broad effect. The plaintiffs may not under the present pleadings be deemed to be in pari delicto with the defendant and for that reason barred from invoking the right given by the statute to sue for treble damages. [Tench v. Lawson, 225 App. Div. 198, 200; O’Connor v. Bankers Trust Co., 278 N. Y. 649; Watts v. Malatesta, 262 N. Y. 80; 5 Williston on Contracts (1937 ed.) §1632; Emergency Price Control Act of 1942, § 205, subd. (e), U. S. Code, tit. 50, Appendix, § 925, subd. (e); Maximum Price Begulation No. 341 (8 Federal Register, p. 3971); Moulton v. Westchester Racing Assn., 95 App. Div. 276, 278.]
The complaint sufficiently alleges that plaintiffs were purchasers from the defendant under circumstances which estab*605lished that they were buying the article “ for use or consumption,” that is, as ultimate consumers, and that they were not buying “ in the course of trade or business ” within the meaning of the statute and regulations cited (supra). The cause of action authorized by. the statute under such circumstances as a matter of pleading vests in the plaintiffs. If the pleaded, ultimate fact be not sustained by evidentiary proof, a finding must follow that the cause of action does not vest in plaintiffs.
Order dated November 22, 1943, denying plaintiffs’ motion to strike out the second defense in defendant’s answer as insufficient in law, reversed on the law, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, with leave to the defendant to serve an amended answer within ten days from the entry of the order hereon.
Order dated January 10, 1944, denying defendant’s motion under rule 112, Buies of Civil Practice, for judgment dismissing the complaint, affirmed, with ten dollars costs and disbursements.