Auen v. Marwill Trading Corp.

The order appealed from is correct in so far as it denies plaintiff’s motion for summary judgment. It is incorrect to the extent that it denies the motion to strike out the first separate and distinct defense. This defense alleges that the defendant tendered the sum of $250, and that the plaintiff refused to receive the same. Such plea does not constitute a complete defense to causes of action wherein the sums demanded aggregate $13,250. The Civil Practice Act (§§ 171-173) indicates the procedure to be followed in the event of tender, and the effect of plaintiff’s acceptance or non-acceptance thereof.

The order should be modified to the extent of granting the motion to strike out the first separate and distinct defense, and, as so modified, affirmed, without costs.

Present — Martin, P. J., Townley, Unteemyer, Cohn and Callahan, JJ.

Order unanimously modified to the extent of granting the motion to strike out the first separate and distinct defense, and, as so modified, affirmed, without costs.