
    (April 29, 1938.)
    Quaker Ice Cream Corporation, Appellant, v. Stewart’s Restaurants, Inc., Respondent.
   Per Curiam.

The fourth defense, pleaded as a counterclaim, should have been dismissed. It is predicated upon defendant’s alleged right to recover rent owing by plaintiff to the Green & Low Paper Company, Inc., the paramount landlord, upon the theory that the plaintiff’s lease with Green & Low had been assigned to the defendant. But the right of the Green & Low Company to recover this rent from the plaintiff was established by the order of dispossess in the summary proceedings brought by Green & Low and to which proceedings the defendant was a party. The final order in favor of Green & Low was an adjudication that it still owned the lease and the right to collect rent thereunder.

It follows, therefore, that the motion to dismiss the fourth separate, distinct and partial defense, also alleged as a counterclaim, should have been granted under rule 110, subdivision 3. The order denying the motion made under rule 109 should be affirmed and the order denying the motion to dismiss made under rule 110, subdivision 3, should be reversed and the motion granted with respect to the fourth alleged defense and counterclaim, but otherwise denied.

Present — Martin, P. J., O’Malley, Townley, Glennon and Untermyer, JJ.

Order denying motion made under rule 109 unanimously affirmed; order denying motion to dismiss under rule 110, subdivision 3, unanimously reversed and the motion granted with respect to the fourth alleged defense and counterclaim, but otherwise denied. Settle order on notice.  