Opinion
March 6, 1940.
Present — Crosby, P.J., Taylor, Dowling, Harris and McCurn, JJ.
Judgment and order reversed on the law and a new trial granted, with costs to the appellant to abide the event. Memorandum: The defendant's answering affidavit presents a triable issue as to whether or not there was a mutual rescission of the conditional sales contract based upon the facts set forth in said affidavit. The fact that such defense was not pleaded is not fatal as the defendant may ask to amend her answer on the trial or on motion. A cross-motion for such relief will not lie on a motion for summary judgment. Such a motion is not addressed to the pleadings. (See McKenzie v. Harrison, 120 N.Y. 260, 263; Gravenhorst v. Zimmerman, 236 id. 22, 27; Bowery Savings Bank v. Sonona Holding Corp., 251 App. Div. 746; Brauer v. Miller, 140 Misc. 80; Lewis Historical Pub. Co., Inc., v. Bowe, 142 id. 862; Burgin v. Ryan, 238 App. Div. 122, 123; Curry v. Mackenzie, 239 N.Y. 267, 272; Security Finance Co. v. Stuart, 130 Misc. 538-540.) Since this action is purely statutory and was begun within six years after the alleged sale of the chattel in question, the plea of the six-year Statute of Limitations is not available to the defendant. (See Dickson v. Niles, 122 Misc. 818, 820; affd., 210 App. Div. 801; Civ. Prac. Act, § 48, subd. 2; Shepard Co. v. Taylor Publishing Co., 234 N.Y. 465, 467, 468; Schmidt v. Merchants Despatch Trans. Co., 270 id. 287, 305.) All concur. (The judgment is for plaintiff in an action under a conditional contract of sale. The order grants plaintiff's motion for summary judgment.)