
    Ethel Merker, Individually and as Guardian ad Litem for Leona R. Merker and Others, Infants, et al., Respondents, v. Aaron Merker, Appellant, et al., Defendant.
   The order dated February 2, 1959 is modified, on the law, on the facts, and in the exercise of discretion, o the extent of granting leave to appellant to serve the amended answer as set forth in his cross motion within 20 days after the entry of the order herein, and otherwise affirmed, without costs. The defenses sought to be interposed by way of amended answer were before the court in the form of an exhibit. The affidavit of the attorney was sufficient in this case, all of the defenses being legal in nature. (Truman v. Lester, 71 App. Div. 612.) We do not at this time pass on the sufficiency of the defenses. Settle order. The order dated February 27, 1959 is reversed, on the law, on the facts, and in the exercise of discretion, and the motion to extend appellant’s time to move to preclude is granted, with costs to appellant, and the time therefor extended to 20 days after the entry of the order herein. The pending appeal from the order of February 2,1959 to the extent it denied the motion to preclude, under the facts and circumstances of this case, warranted an extension of time to so move under subdivision (d) of rule 115 of the Rules of Civil Practice. Settle order. Concur — Botein, P. J., Rabin, Valente, McNally and Stevens, JJ.  