The testimony in behalf of the landlord presented a question of fact as to whether some major capital improvement had been made prior to November 1, 1943. It was error, therefore, to strike out the entire testimony. If major capital improvements were made prior to November 1, 1943, the provisions of clause (4) of subdivision (d) of section 4 of the Rent Regulation for Housing in the New York City Defense-Rental Area applied (8 Fed. Reg. 13915).
*192The judgment should be unanimously reversed upon the law and new trial granted, with $30 costs to defendant to abide the event.
The appeal from the order denying summary judgment should be dismissed.
MacCrate, Smith and McCooey, JJ., concur.
Judgment reversed, etc.