majority">Per Curiam.

The third counterclaim should be struck out as not stating facts sufficient to constitute a cause of action. It is not only indefinite and uncertain, but is wholly lacking in allegations of fact which would warrant a recovery. The motion was timely so *619far as it challenged the sufficiency of the counterclaims on the merits. (Civ. Prac. Act, § 279.)

Otherwise the order should be affirmed. The objection that counterclaims in tort are not properly interposed to a complaint in contract arises under section 278 of the Civil Practice Act and rule 109 of the Rules of Civil Practice, which must be read together. As the motion was not noticed within ten. days after the service of the answer, and in fact not until long after the reply was served (Civ. Prac. Act, § 282), the learned justice at Special Term properly overruled the objection on this ground.

Assuming that a motion for summary judgment under rule 113 of the Rules of Civil Practice may properly be made where the answer includes a counterclaim (Chelsea Exchange Bank v. Munoz, 202 App. Div. 702), such motion was properly denied in this instance because the reply failed to allege the affirmative defense of accord and satisfaction which plaintiff’s motion papers disclose as the basis of his claim for the denial to defendant of relief on the first and second counterclaims. (Reilly v. Barrett, 220 N. Y. 170; Habrich v. Donohue, 51 App. Div. 375.) This defense is not open to the plaintiff without an amendment of his reply.

The order should be modified to provide for the striking out of the third counterclaim, and as modified affirmed, without costs.

All concur. Present — Hubbs, P. J., Clark, Davis, Sears and Taylor, JJ.

Order modified by striking out the third counterclaim and as so modified affirmed, without costs of this appeal to either party.

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