Majority
The order appealed from should be modified so as to strike out under rules 102 and 103 of the Rules of Civil Practice paragraph “ Fifth ” of the complaint as alleged and also as realleged in paragraph “ Twelfth ” as not necessary to the cause of action alleged (Schulman v. Royal Ind. Bank, 279 App. Div. 1008 ), and as so modified the order appealed from is affirmed, with costs to appellants. When the case was considered on appeal in Schulman v. Royal Ind. Bank ( 281 App. Div. 674 ) it was solely on a motion to dismiss under rules 112 and 113 and there was no motion before the courts under rules 102 and 103.
The order appealed from should be modified accordingly, with costs to appellants.
Dore, J. P., Cohn, Callahan, Breitel and Bergan, JJ., concur.
Order unanimously modified in accordance with the opinion herein and, as so modified, affirmed, with $20 costs and disbursements to the appellants.