Opinion
June, 1936.
Orders of Appellate Term affirming orders of the Municipal Court of the City of New York, Borough of Brooklyn, granting plaintiff summary judgments, and judgments entered thereon, reversed on the law, with costs in this court and in the Appellate Term; orders and judgments of the Municipal Court reversed, and motions for summary judgments denied, with ten dollars costs. At the time the motions were made and the orders were granted, the amended complaints, upon which the judgments were granted, had not been served upon the defendant and no answers had been interposed. The motions were, therefore, prematurely made. The court is of opinion that if defendant had interposed to the amended complaints the same defense and counterclaim that was interposed to the original complaints the motions for summary judgments should have been denied as triable issues of fact were presented. Lazansky, P.J., Young, Carswell, Johnston and Taylor, JJ., concur.