Opinion
December, 1926.
Order striking out defendants' answer and granting summary judgment, and the judgment entered thereon, reversed on the law, with costs, and motion denied, with ten dollars costs. The averments of the affidavit in opposition to the motion, that plaintiff deprived the tenants of the use and occupation of four feet of the premises facing on Surf avenue, so that the tenants instead of having fifteen feet on Surf avenue, as the lease provides, had only eleven feet thereon, show facts sufficient to entitle defendants to defend under rule 113 of the Rules of Civil Practice. This is so even if there is no defense or counterclaim pleaded in the answer. ( Curry v. Mackenzie, 239 N.Y. 267.) Kelly, P.J., Jaycox, Manning, Kapper and Lazansky, JJ., concur.