Order modified so as to provide that the motion is granted with respect to the fifth defense and the counterclaim, and denied with respect to the fourth defense. As so modified, the order is affirmed, without costs, with leave to respondent to serve an amended answer within ten days from the entry of an order hereon.
It is not alleged in the fifth defense that the note and mortgage are invalid or unenforcible, except by reason of a lack of surplus on the part of the...
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