Unipak Corp. v. Smith , 3 A.D.2d 666 ( 1957 )

In an action to recover damages for conversion, the appeal is from an order denying a motion under rule 109 of the Rules of Civil Practice to strike out as insufficient in law the first and second affirmative defenses in the answer. Order modified by striking from the ordering paragraph the word “ denied ” and by adding thereto a provision that the motion is granted as to the second defense and denied as to the first defense. As so modified, order affirmed, without costs. Both defenses are pleaded as complete defenses. Giving to the pleader the benefit of every favorable inference, the first defense may be deemed sufficient. As to the second defense, however, even if such favorable inferences be drawn, it is still insufficient. The facts pleaded therein neither entitle respondent to hold the property as against the appellant nor justify respondent’s resistance to appellant’s demand for the property. Nolan, P. J., Wenzel, Beldoek, Murphy and Kleinfeld, JJ., concur.