Opinion
November 28, 1949.
In an action brought for specific performance of an agreement to grant the plaintiff a first option for a lease, defendant Rink Realty Corporation moved to compel a reply to a counterclaim and separate defenses set up in its answer. Plaintiff made a cross motion to strike out the counterclaim and defenses and for summary judgment under rule 113 of the Rules of Civil Practice, or in the alternative to strike out the answer as sham, and to strike out generally the denials and defenses as sham, and in the alternative for judgment on the pleadings; and to strike out the counterclaim and defenses on the ground they were insufficient in law. Special Term denied said defendant's motion, and, by separate order, granted plaintiff's motion insofar as it sought to strike out the counterclaim and defenses. An amended answer was served prior to the hearing of the motion. The parties have consented that the motions shall be deemed to have been directed to the amended answer. Order on plaintiff's cross motion modified on the law by striking therefrom the second ordering paragraph and substituting therefor: "Ordered that the motion to strike out the separate defenses and counterclaim is granted to the extent of striking out the second, third and fourth defenses; and it is further". As so modified, the order is affirmed, without costs. Order denying motion to compel a reply modified on the law by striking from the ordering paragraph the words "in all respects," and by inserting after the last word of the paragraph "in so far as the second, third and fourth defenses are concerned." As so modified, the order is affirmed, without costs. Plaintiff may reply to the counterclaim and first defense within ten days after the entry of the order hereon. Counsel for the appealing defendant, in opposition to the motion by plaintiff, swears that the parties agreed that plaintiff was not to have a first option for a lease, and that by mistake the written agreement sued upon failed to express the actual agreement of the parties. The counterclaim and first defense pleads as facts what is set forth in the affidavit. That counterclaim and defense is sufficient in law and should not have been struck out. ( Amend v. Hurley, 264 App. Div. 881.) A trial is necessary. ( Susquehanna S.S. Co. v. Andersen Co., 239 N.Y. 285.) Summary judgment was, therefore, properly denied, assuming that rule 113 is applicable. The other defenses were properly struck out. The agreement of settlement was not void as against public policy and on its face legal consideration is stated for the appealing defendant's promise, whether as pleaded or as sought to be incorporated by reformation. As pleaded, the writing provides no exception to the obligation of the appealing defendant to notify plaintiff of the basic terms and conditions on which it would lease to plaintiff. Obviously, the parties contemplated that not later than the termination of possession by the Navy Department the appealing defendant would give the notice. At that time said defendant would not have a business with good will in the premises. Carswell, Acting P.J., Johnston, Adel, Wenzel and MacCrate, JJ., concur. [See post, p. 870.]