Nash v. Mennan (275 A.D.2d 952, 1949)

The allegations of the second affirmative defense must be accredited, for the purposes of the motion to dismiss, as were the allegations of the complaint on the previous motion to dismiss that pleading. (Nash v. Mennan, 275 App. Div. 674.) In passing on the sufficiency of the second defense, it must be assumed that there is no bargaining agreement with a rival union. Such other or contrary facts alleged in the complaint (denied in the answer) as would render the provisions of section 876-a of the Civil Practice Act inapplicable may not be considered on this motion. (3 Carmody on New York Pleading and Practice, § 1051.) As a matter of pleading, therefore, the second defense is sufficient. Carswell, Acting P. J., Johnston, Adel, Wenzel and MacCrate, JJ., concur.