Opinion
June, 1935.
In an action to recover plaintiff's share of a savings bank deposit, order granting summary judgment reversed on the law and the facts, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Order striking out defenses and counterclaims in the answer of defendant Wollschlager and for judgment reversed on the law and the facts and motion granted to the extent of striking out the second separate defense and counterclaim, without costs. Judgment entered upon the above orders reversed on the law and the facts. In our opinion, there are presented upon this record issues which require a trial, and the granting of summary judgment was, therefore, erroneous. The plaintiff, however, was entitled to an order striking out the defendant's second defense and counterclaim for the reason that such counterclaim was not one which could properly be interposed in this action. Lazansky, P.J., Young, Carswell, Tompkins and Johnston, JJ., concur.