The motion to dismiss the counterclaim under rule 113 was properly denied as the affidavits present triable issues of fact. The motion under rule 112 for judgment striking out the affirmative defenses was also properly denied. The sufficiency of these defenses can only be raised by a motion in the nature of a special demurrer under an appropriate rule. Such motion must be made within ten days after service of the answer. (See Rules Civ. Prac. rule 109.) The court, accordingly, has not passed on the sufficiency of the special defenses since the motion was not timely made.
The order should be affirmed, with twenty dollars costs and disbursements.
Present — Martin, P. J., O’Malley, Townley, Cohn and Callahan, JJ.
Order unanimously affirmed, with twenty dollars costs and disbursements.