Continental Inn, Inc. v. Waldheimer , 34 N.Y.S.2d 415 ( 1942 )

Appeal from order in so far as it grants plaintiff’s motion under rule 109 of the Rules of Civil Practice, to strike out the first, second and third defenses and to dismiss the first and second counterclaims on the ground they are insufficient in law. Order modified on the law and the facts by allowing defendants, within ten days from the entry of the order hereon, to amend the third affirmative defense and second counterclaim and, as thus modified, the order, in so far as appealed from, is affirmed, without costs. The third counterclaim would seem to afford adequate relief to the defendants in the event there is merit in respect of the matter which they claim they desire to set out in an amended answer in respect of the third affirmative defense and second counterclaim or in the event they wish to invoke damages on the theory of the amount of the premium for insurance covering the chattels, if it be the fact that no insurance was procured by the tenant. Lazansky, P. J., Carswell, Johnston, Adel and Close, JJ., concur.