Erie Commercial Corp. v. Then

Judgment and order reversed on the law and a new trial granted, with costs to the appellant to abide the event. Memorandum: The defendant’s answering affidavit presents a triable issue as to whether or not there was a mutual rescission of the conditional sales contract based upon the facts set forth in said affidavit. The fact that such defense was not pleaded is not fatal as the defendant may ask to amend her answer on the trial or on motion. A cross-motion for such relief will *787not He on a motion for summary judgment. Such a motion is not addressed to the pleadings. (See McKenzie v.…