
    East River Savings Bank, Respondent, v. Lash Realty Co., Inc., Appellant, et al., Defendants.
   Per Curiam.

The order appealed from denying the motion of defendant Lash Realty Co., Inc., for summary judgment should be affirmed, without costs.

The order appealed from granting plaintiff’s cross motion to the extent of adjudging that the interest due on plaintiff’s mortgage for the quarter ending September 1, 1944, and thereafter is payable at 5½% per annum, should be reversed, without costs, and plaintiff’s motion for summary judgment denied on the ground that appellant’s affidavit presents issues that should await trial.

Defendant’s answer is defective in failing to plead the alleged agreement now relied on to defeat plaintiff’s motion. But under rule 113 of the Rules of Civil Practice if the party whose pleading is attacked shows by affidavit or otherwise a triable issue,, the motion for summary judgment must be denied. (Curry v. Mackenzie, 239 N. Y. 267, 272; Perlman v. Perlman, 235 App. Div. 313, 314.) An issue as important as the alleged agreement of December, 1938, should be presented by the pleadings, and before trial defendant should apply for leave to set up the said agreement in its answer and thus permit plaintiff, if so advised, to move with regard thereto.

Martin, P. J., Townley, Glennon, Untermyer and Dore, JJ., concur.

Order denying motion of defendant-appellant for summary judgment unanimously affirmed, without costs.

Order granting plaintiff’s cross motion for summary judgment to the extent of adjudging that the interest due on plaintiff’s mortgage for the quarter ending September 1, 1944, and thereafter is payable at 5½% per annum unanimously reversed, without costs, and plaintiff’s motion for summary judgment denied. Settle order on notice.  