Jones v. Breyer Ice Cream Co.

The plaintiffs moved at Special Term, pursuant to subdivision 6 of rule 109 of the Buies of Civil Practice, to strike out a separate and affirmative defense set forth in paragraphs 6-13, inclusive, of defendant’s answer. The action is for injunctive relief and damages, it being alleged that the defendant discharged and continues to discharge “ refuse and sewage ” from its plant into a pond of the plaintiffs. The affirmative defense is that the defendant has acquired a prescriptive right to continue to discharge “ water and waste milk ” into the stream or pond by adverse user for upwards of…