268 A.D. 972 | N.Y. App. Div. | 1944
The court at Special Term correctly held that the defense as pleaded was clearly insufficient in laVr. However the defense should also have been stricken out under rule 103 of the Rules of Civil Practice. The court should have considered the affidavits. (Zwerdling v. Bent, 264 App. Div. 195.) Accordingly the order appealed from should be reversed insofar as it denies the motion to dismiss the defense contained in paragraphs 3 to 8 of defendant’s answer, pursuant to rule 103 of the Rules of Civil Practice, and the said motion granted, and, insofar as said order grants the motion to dismiss the defense pursuant to subdivision 6 of rule .109 of the Rules of Civil Practice, it should be affirmed, with twenty dollars costs and disbursements to the plaintiff. Settle order on notice. Present - Martin, P. J., Townley, Glennon, Untermyer and Dore, JJ.
