The first counterclaim based on alleged breach of contract and the second counterclaim for alleged unfair competition are sufficiently-stated to defeat plaintiffs motion under rule 109 for insufficiency on the face of the pleading.
The third counterclaim for alleged illegal restraint of trade is insufficient. Defendant fails to allege facts showing that plaintiffs claimed action was pursuant to a combination, agreement or arrangement with others constituting an illegal restraint of trade (Locker v. American Tobacco Co., 195 N. Y. 565, 566; General Business Law, § 340).
We think Special Term correctly denied the motion to strike out additional portions of the answer as irrelevant under rule 103.
The order so far as appealed from should be modified accordingly by granting plaintiffs motion to strike out the third counterclaim under rule 109 and as so modified affirmed, without costs, with leave to defendant, if so advised, to replead within ten days after service of the order herein.
Present — 'Martin, P. J., Untermyer, Dore, Cohn and Callahan, JJ.
Order unanimously modified in accordance with opinion and as so modified affirmed, without costs, with leave to the defendant, if so advised, to replead within ten days after service of order to be entered herein. Settle order on notice.