Opinion
May, 1929.
Order striking out paragraphs numbered 1, 2 and 3 and the separate defenses and counterclaims in the answer of defendant Steel-Crete Homes Co., Inc., and granting judgment on the pleadings, modified so as to provide for a denial of the motion to strike out paragraphs numbered 1, 2 and 3 and the first, second and third defenses, and for a denial of the motion to grant judgment on the pleadings, and as so modified affirmed, with ten dollars costs and disbursements, and ten dollars costs of motion to appellant. Judgment of foreclosure and sale reversed upon the law and the facts, without costs. The first and second defenses are sufficient in law. (2 Beach Mod. Eq. Juris. 614, § 541; Fitzpatrick v. Sweeny, 56 Hun, 159, 161; affd., 121 N.Y. 707. ) The third defense alleges a contract between plaintiff and defendant Steel-Crete Homes Co., Inc., and is sufficient in law. The allegations of the fourth defense are insufficient in law and do not state a cause of action as the basis of a counterclaim. The denials of non-payment of interest on prior mortgage and the mortgage in this action are not sham. Lazansky, P.J., Rich, Kapper, Hagarty and Scudder, JJ., concur.