
    Abt-Bernot, Inc., Plaintiff, v. Holland-American Line, Defendant.
    Supreme Court, Bronx County,
    April 3, 1925.
    Pleadings — answer reciting hypothetical defense and plea in alternative insufficient — plea of confession and avoidance requires definite admission — motion to strike out said defense granted.
    Plaintiff’s motion to strike out a defense in defendant’s answer as insufficient should be granted where said defense appears to be hypothetical, as well as a plea in the alternative, and fails to set out the ultimate facts on which the defendant relics to be relieved of liability.
    The plea of confession and avoidance requires a definite admission and a statement of ultimate facts which, if established, exonerate the defendant of liability.
    Motion by plaintiff to strike out paragraph of answer.
    
      Neil P. Cullom, for the plaintiff.
    
      Burlingham, Veeder, Masten & Fearey, for the defendant.
   Wagner, J.

The defense set up in paragraph 8 of the answer is insufficient because it is hypothetical, and because it is a plea in the alternative, and because it fails to set forth the ultimate facts upon which defendant relies to be relieved of liability.

The plea of confession and avoidance requires a definite admission and a statement of ultimate facts which, if established, exonerate the defendant of liability.

The motion to strike out paragraph 8 is granted, with leave to defendant to serve an amended answer within twenty days.  