
    Sam Schechner, Appellant, v. Holmes Electric Protective Company, Respondent.
    First Department,
    June 24, 1938.
    
      Rubin Schmier of counsel [Schmier & Schmier, attorneys], for the appellant.
    
      Hugh N. Wells of counsel [Irving W. Young, Jr., with him on the brief; Charles T. Russell, attorney], for the respondent.
   Per Curiam.

Plaintiff’s motion to strike out the affirmative defenses was properly denied.

The defendant’s cross-motion, being one for judgment on the pleadings, did not establish the truth of the allegations in defendant’s answer. The allegations contained in the affirmative defenses were deemed controverted. (Civ. Prac. Act, § 243.) Nor could the new matter affirmatively alleged in the answer be considered in determining whether the complaint states a cause of action. (Warshawsky v. Ward, 233 App. Div. 390.) It was error, therefore, for Special Term to dismiss the complaint on the theory that the matters pleaded as affirmative defenses overcame plaintiff’s cause of action. The complaint was sufficient on its face.

The order, in so far as it grants defendant’s motion for judgment on the pleadings, and the judgment entered thereon, should be reversed, with costs, and said motion denied. The order, in so far as it denies plaintiff’s motion to strike out the affirmative defenses, should be affirmed.

Present — Martin, P. J., Glennon, Dore, Cohn and Callahan, JJ.

Order, in so far as it grants defendant’s motion for judgment on the pleadings, and the judgment entered thereon, unanimously reversed, with costs, and the said motion denied, and order, in so far as it denies plaintiff’s motion to strike out the affirmative defenses, affirmed.  