Reineking v. Embro Realty Corp. ( 1937 )

In an action to foreclose a mortgage, order striking out the answer as sham and frivolous and granting summary judgment modified by denying the motion for summary judgment as against the appealing defendant, and leaving in the answer the denials therein but striking out the affirmative defense and counterclaim. As so modified, the order is affirmed, without costs. The granting of the motion to strike out the defense and counterclaim does not warrant the granting of summary judgment in plaintiff’s favor. The answer still contains specific denials, and those raise triable issues as to the amount of payments, if any, made on the mortgage to the testator. As to such issues there may be a trial before the court or a referee. Lazansky, P. J., Hagarty, Davis, Adel and Taylor, JJ., concur.