
    Myrine Collins Harten, Respondent, v. James Harten, Appellant.
    First Department,
    May 17, 1940.
    
      
      Julius Hallheimer of counsel [Aaron Halpern with him on the brief], for the appellant.
    
      Sidney B. Fleisher of counsel [James A. Stabile with him on the brief], for the respondent.
   Per Curiam.

The order denying the defendant’s motion to strike out parts of the complaint should be reversed and the motion granted on the ground that paragraphs “ Fourth,” “ Fifth,” Sixth,” Seventh ” and “ Ninth ” fail to comply with rule 280 of the Rules of Civil Practice and that the allegations of fact contained in paragraph Tenth ” of the complaint fail to sustain a cause of action for abandonment.

The order, in so far as it denies the defendant’s motion to strike out parts of the complaint, should be reversed and the motion granted, with leave to the plaintiff to serve an amended complaint. The order, to the extent that it grants the plaintiff’s motion for temporary alimony and counsel fee, should be reversed and motion denied, with leave to the plaintiff to renew the motion upon service of a proper complaint.

Present — Martin, P. J., O’Malley, Glennon, Untermyer and Dore, JJ.; Martin, P. J., dissents.

Order, in so far as it denies defendant’s motion to strike out paragraphs Fourth, Fifth, Sixth, Seventh, Ninth and Tenth of the complaint, reversed, without costs, and said motion granted, with leave to the plaintiff to serve an amended complaint within twenty days after service of order. Order, to the extent that it grants plaintiff’s motion for temporary alimony and counsel fee, reversed and the said motion denied, with leave to the plaintiff to renew said motion upon service of a proper complaint.  