Opinion
October, 1930.
Order dated March 18, 1930, in so far as it denies motion to strike out answer and for summary judgment, and order dated April 14, 1930, denying, on reargument, motion to strike out answer and for summary judgment, reversed upon the law and the facts, with ten dollars costs and disbursements, and plaintiff's motion for summary judgment granted, with ten dollars costs, to the extent of the amount due on the promissory note with interest plus an allowance of ten per cent of the amount due on said note to cover the expense of collecting the same. In our opinion, the answer to the amended complaint alleges no good defense, and the counterclaim contained in the third affirmative defense does not state facts sufficient to constitute a cause of action against the plaintiff and is insufficient in law as a defense. Appeal from order denying motion to resettle orders dismissed, without costs. Young, Scudder and Tompkins, JJ., concur; Lazansky, P.J., and Kapper, J., dissent.