
    George E. Payne, Appellant, v. The City of New York, Respondent.
   Order denying motion to strike out matter alleged as a separate defense in paragraph 6 of answer reversed upon the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. -The plaintiff was entitled to rent from the defendant after September, 1911, for the part of the demised premises not acquired by the defendant by condemnation, and the defendant, having paid plaintiff a rental of $850 a year continuously from 1911 to 1926, is to be deemed to have ratified and adopted the apportionment and adjustment made by its deputy comptroller with the plaintiff in 1911 under which such payments were made. Young, Kapper, Seudder and Tompkins, JJ., concur; Lazansky, P. J., dissents.  