
    John F. Kaspar, Appellant, v. Elbert W. Linscott, Respondent.
   Action to recover damages for assault and battery. Order granting defendant’s motion to strike out certain specified matter contained in the complaint modified on the law by deleting so much of the first ordering paragraph as strikes out part of paragraph 2 ” of the complaint and, as so modified, the order is affirmed, with $10 costs and disbursements to the appellant, with leave to defendant to answer within ten days from the entry of the order hereon. The matter set out in paragraph 2 ” of the complaint was improperly struck out. (3 Wait’s New York Practice [4th ed.], § 10 and cases cited; 5 C. J., Assault and Battery, § 68.) Close, P. J., Carswell, Adel, Lewis and Aldrich, JJ., concur.  