
    Pure Strain Farms Company, Appellant, v. Edwin C. Smith and Another, Respondents.
    Judgment and order reversed and new trial granted, with costs to appellant to abide event. Held, that upon a motion to dismiss a complaint and for judgment thereon upon the ground that there is not stated therein facts constituting a cause of action, the allegations thereof must be assumed to be true (De Wolf v. Ford, 193 N. Y. 397); that the complaint in this case stated a cause of action in equity, independent of title 1, article 5, sections 1638 to 1646, inclusive, of the Code of Civil Procedure, and that it was error to dismiss it (Livingston v. Moore, 15 App. Div. 15-26; Swarthout v. Ranier, 143 N. Y. 499; St. Stephens Church v. Church of Transfiguration, 201 id. 1); that in any event, without taking proof of the defenses alleged, it was error to grant the defendants affirmative relief.
    
      
       Code Civ. Proo. chap. 14, tit. 1, art. 5; Id. §§ 1638-1646.— [Rep.
    
   All concurred.  