Opinion
February 27, 1951.
Present — Peck, P.J., Glennon, Cohn, Callahan and Shientag, JJ.
Order striking out the answer of the defendant and granting summary judgment in favor of the plaintiffs under rule 113 of the Rules of Civil Practice unanimously reversed, with $20 costs and disbursements to the appellants, and the judgment vacated on the ground that the opposing affidavits raise triable issues of fact. The court below properly struck the first partial defense and the first separate defense of the answer on the ground of legal insufficiency. The second, third and fourth separate defenses are legally sufficient on their face and should not have been stricken. On a motion under rule 109 of the Rules of Civil Practice affidavits may not be considered. Settle order on notice.