Opinion
July 28, 1959
In an action to foreclose a mortgage on real property, the appeal is from so much of an order as denied appellant's motion to strike out respondent's second affirmative defense for legal insufficiency (Rules Civ. Prac., rule 109), and for summary judgment striking out the answer (Rules Civ. Prac., rule 113). Order insofar as appealed from affirmed, with $10 costs and disbursements. There is a triable issue of fact as to whether the parties intended the mortgage to cover three plots, as appellant claims, or only two, as respondent contends. That issue bars summary judgment ( Clinton Trust Co. v. Church Extension Committee, 255 App. Div. 157). On a motion pursuant to rule 109 to strike out a defense, affidavits may not be considered. From the pleadings alone it cannot be determined whether the gambling debt alleged in the second affirmative defense was legal and enforcible (see L. 1940, ch. 254, § 2; Fla. Stats., Ann., § 849.26), or whether it was illegal and unenforcible, since the pleadings do not disclose the place and precise nature of the gambling. Hence, the second affirmative defense is sufficient on its face and should stand until trial. Wenzel, Acting P.J., Beldock, Murphy and Kleinfeld, JJ., concur; Hallinan, J., not voting.