Defenses alleged in the answer may not be considered in the determination of the motion since the allegations of such defenses are deemed controverted. (Civ. Prac. Act, § 243.) Issues of fact are presented which require the denial of relief pursuant to rule 112.
Wenzel and Schmidt, JJ., dissent and vote to affirm, with the following memorandum:
The petitioner herein was, on the face of her petition, not entitled to the relief she sought. She should have...
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