Opinion
October 13, 1961
Order entered on September 1, 1961, denying plaintiff's motion to strike defenses and counterclaims, unanimously affirmed, without costs. The right of the defendant wife to remain in possession of the co-operative apartment has been adjudicated against her. ( Tausik v. Tausik, 9 N.Y.2d 664.) There has been no adjudication, however, concerning her liability for use and occupation of the co-operative apartment. The purported defenses relating to use and occupation may be sustained if construed as claims of setoff for the rental of shelter to which the wife would have been entitled if she were otherwise entitled to support. Trial of the cause is imminent and the defenses are so construed. The obligation of plaintiff for claimed past necessities of the defendant wife and the extent thereof present issues to be determined upon the trial. Motion for a stay denied. The stay contained in the order to show cause, dated September 28, 1961, is vacated. Motion to dismiss appeal denied.
Concur — Botein, P.J., Breitel, Rabin, Valente and McNally, JJ.