Opinion
May 15, 1962
Order entered October 4, 1961 and the judgment entered thereon on October 20, 1961, unanimously reversed on the law and plaintiff's motion for partial summary judgment is denied, with costs to defendant-appellant. Appeal from the order entered on October 17, 1961 denying defendant's motion for a rehearing is dismissed as academic, without costs. There are triable issues presented which required a denial of partial summary judgment on the first cause of action. Among others, there are issues as to whether Meadowbrook and plaintiff were Arlee's agents, whether defendant could set off against plaintiff, as an undisclosed principal, the indebtedness of Arlee, and whether plaintiff was Arlee's assignee and therefore subject to a setoff of claims which defendant had against Arlee. Only after a trial following adequate pretrial examinations can there be a proper resolution of the issues in this case. Special Term properly struck out the new matter pleaded in the answer in connection with the denials. But even if the pleading is bad, summary judgment must nevertheless be denied if the affidavits indicate triable issues. ( Curry v. MacKenzie, 239 N.Y. 267, 272.) The deficiency in pleading can be supplied by amendment. Therefore, defendant is given leave to serve an amended answer appropriately pleading affirmative defenses, setoffs or counterclaims, within 10 days after the entry of the order herein.
Concur — Valente, J.P., Stevens, Eager, Steuer and Bergan, JJ.