179 Misc. 839 | New York County Courts | 1943
Plaintiff moves to strike out the defense contained in paragraphs “ Third ” through “ Twelfth ” of defendant’s answer under rule 109 of the Buies of Civil Practice and for summary judgment. Defendant cross-moves for summary judgment. The action is brought to recover an installment of rent for the month of November, 1942, pursuant to the terms of a written lease. The affirmative defense contained in the answer alleges substantially that recent governmental decrees, orders and regulations, curtailing and restricting the manufacture and distribution of merchandise — particularly, those concerned in the leasing agreement — have destroyed the subject matter contemplated by the lease and have rendered the substantial use of the premises by the defendant impossible.
Becently, since the commencement of the government’s program to conserve certain products and commodities, the defense here interposed has received frequent judicial attention. In most cases, the governmental regulations resulted in a complete and total destruction of the subject matter, thereby frustrating the very purposes for which the premises were to be used. In the present case, however, there does not appear to be a complete prohibition against the sale of the merchandise, or termination of the use specified in the lease, but rather a curtailment and restriction of such sale or use, “ If a statute is adopted after
Motions denied, without costs. Submit order.