Charles v. Murphy , 284 A.D. 987 ( 1954 )

In an action for conversion, for money had and received, and upon a contract, the parties cross-appeal respectively from portions of an order which are adverse to them. The order (1) denied respective motions for summary judgment; (2) denied plaintiff’s motion to strike out defendant’s first, second and third defenses, and to strike out as a defense and dismiss as a counterclaim defendant’s fifth defense and counterclaim; and (3) granted plaintiff’s motion to strike out defendant’s fourth defense. Order modified by striking from the third ordering paragraph the word “ granted ” and substituting, in lieu thereof, the word “ denied ”. As so modified, order affirmed, without costs. The papers on appeal indicate the presence of triable issues of fact. Defenses may be struck out and counterclaims may be dismissed under rule 109 of the Rules of Civil Practice only for defects which appear on the face of the said pleadings. Nolan, P. J., Wenzel, Schmidt, Beldock and Murphy, JJ., concur.