Opinion
February 4, 1960
Appeal from the Monroe Special Term.
Present — Williams, P.J., Goldman, Halpern, McClusky and Henry, JJ.
Order modified by striking out paragraphs 17 and 36 of defendants' answer, and by ordering a severance and separate trial of the counterclaims with leave to the plaintiff to reply thereto within 20 days after entry of the order entered herein, and as so modified, unanimously affirmed, without costs of this appeal to any party. Memorandum: Paragraphs 17 and 36 of defendants' answer raise no triable issues and should be stricken. The matters set forth in defendants' answer commencing with the second separate defense and first counterclaim raise issues which we believe in the interest of justice may best be tried separately from the action instituted under article 15 of the Real Property Law. Accordingly, in the discretion of this court and pursuant to section 262 of the Civil Practice Act, the order appealed from should be modified and plaintiff's motion granted to the extent of: (1) striking out paragraphs 17 and 36 of defendants' answer in addition to the paragraphs of the answer stricken out by Special Term, and (2) by ordering a severance and separate trial of the counterclaims with leave to the plaintiff to reply thereto within 20 days after the entry of this order, and as so modified, affirmed, without costs.