
    Twenty Morningside Avenue Corporation, Appellant, v. Simon Steinbach, Respondent.
    Supreme Court, Appellate Term, First Department,
    November Term
    Filed December, 1922.
    Landlord and tenant — action for rent — statutory defense may not be stricken out on affidavits.
    Where the answer in an action for rent for the month of May, 1921, pleads the statutory defense that the rent demanded is unreasonable, a motion to strike out the defense, based on affidavits, is unauthorized, and an order denying the motion will be affirmed, no claim being made that the defense was either sham or frivolous.
    Appeal, by permission, by plaintiff from order of the Municipal Court of the city of New York, borough of Manhattan, seventh district, denying its motion to strike out the statutory defense in an action for rent.
    
      Julian J. Raphael, for appellant.
    
      Harry A. Gair, for respondent.
   Per Curiam.

The plaintiff sued for $150, rent of the demised premises for the month of May, 1921. The defendant set up the statutory defense, and plaintiff on an affidavit showing that defendant was in the possession of premises demised to be occupied as a private dwelling and a doctor’s office ” for a term beginning October 1, 1920, moved to strike out the defense upon the authority of Farnham Realty Corp. v. Posner, 200 App. Div. 827, and from the order denying the motion the plaintiff appeals by permission of the justice who made the order.

There is no warrant for the plaintiff’s practice. Under the Municipal Court Code (§ 88) all objections, other than to the jurisdiction, which might have been taken by demurrer may be taken by motion. As the defect must appear upon the face of the pleading to be open to demurrer, the objections referred to under that section are not such as may be shown by affidavit. Nor is there anything in the Rules of Civil Practice which authorizes a motion to strike out a defense upon affidavits. It is not claimed that the defense is either sham or frivolous.

Order affirmed, with ten dollars costs.

All concur; present, Guy, Bijur and Delehanty, JJ.

Order affirmed.  