Opinion
November 4, 1940.
Action to foreclose a second mortgage on real property. Order reversed on the law, without costs, and motion granted, without costs, to the extent of striking out the answer of appellants Anthony Ciaramella and Felicia Ciaramella as sham, with leave to plaintiff, within ten days from the entry of the order hereon, to serve a reply to the counterclaims, alleging as a defense the same facts as were urged by him in support of the motion. In our opinion the claimed defenses of plaintiff to the counterclaims should be pleaded and the issues then determined upon a trial, rather than summarily. Carswell, Johnston, Taylor and Close, JJ., concur; Lazansky, P.J., dissents and votes to affirm the order.