Majority
p. 737Central-Mott Corporation, Respondent, v. Pius A. Vagnier, Appellant, Impleaded with Others, Defendants.
Order striking out counterclaim reversed upon the law, with ten dollars costs and disbursements, and plaintiff’s motion denied, with ten dollars costs. We think that on the facts set out in the pleadings and affidavits, the matters stated in the counterclaim presented an issue to bo determined at the trial. The order striking out a similar counterclaim in the so-called injunction action, involving different issues, is not in our opinion res adjudicate on the present motion. Kelly, P. J., Rich and Kapper, JJ., concur; Jaycox and Kelby, JJ., dissent.