Rho Realty Corp. v. H-M-C Corp.

The plaintiff sues to recover an installment payment of rent due April 1, 1958 under the provisions of a written agreement entered into by the parties on September 30, 1957. It moves to strike the amended answer pursuant to rule 104 of the Rules of Civil Practice. Since the pleading contains a counterclaim, this rule does not apply. (Cwanek v. Kopnak, 3 A D 2d 645, appeal dismissed 2 N Y 2d 931.) The parties, however, seem to have concurred in a procedural variance and regard the motion as one for summary judgment. (Potolski Int. v. Hall’s Boat Corp., 282 App. Div. 44.) The motion is granted.

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