Majority
The determination of the Appellate Term must be affirmed upon the ground that the facts set forth in the defense in any event constitute only a partial defense. (See Civ. Prac. Act, § 262.) The plaintiff’s cause of action arises in part from injury to property on premises adjacent to those demised by the defendant to the plaintiff under the lease on which the defendant relies. The exculpatory provisions of that lease would, therefore, not apply to that part of the plaintiff’s claim which is based upon injury to property contained in the adjacent premises.
Since for this reason the defense was properly stricken out, we must refrain from deciding at this time whether the statute relied on by the plaintiff (Real Prop. Law, § 234, as added by Laws of 1937, chap. 907) applies to leases executed before its enactment.
The determination should be affirmed, with twenty dollars costs and disbursements, with leave to the defendant to serve an amended answer within twenty days after service of a copy of the order, with notice of entry thereof, upon payment of said costs.
Present — Martin, P. J., Untermyer, Dore, Cohn and Callahan, JJ.; Dore, J., concurs in result.
Determination unanimously affirmed, with twenty dollars costs and disbursements, with leave to the defendant to serve an amended answer within twenty days after service of a copy of the order with notice of entry thereof, upon payment of said costs.