
    Woodbridge P. Brown and Margaret P. Brown, Infants, by Eva Brown Gaskins, Their Guardian ad Litem, Respondents, v. Robert Ingersoll Brown and Eva Ingersoll Brown Swasey, Individually, as Heirs at Law and Next of Kin of Walston H. Brown, Deceased, and Eva R. Ingersoll Brown, Deceased, and as Administrators of the Estate of Eva R. Ingersoll Brown, Deceased, Appellants, and William Harvey Smith, as Administrator of the Estate of Walston H. Brown, Deceased, Jointly, Severally and in the Alternative, Defendant.
   Order denying motion of defendants Brown and Swasey for leave to serve a conditional cross complaint affirmed, without costs. Order granting plaintiffs’ motion to strike out the reservation contained in said defendants’ answer and certain defenses and the counterclaim therein modified by granting to the said defendants leave to serve an amended answer within twenty days on payment of costs, which amended answer may, if they be so advised, set forth by proper allegations of fact the defense attempted to be set forth in the ninth separate defense contained in the answer. As so modified, the order is affirmed, with ten dollars costs and disbursements, to abide the event. There may be some doubt as to whether the said defendants may prove, under the denials contained in their answer, facts showing that tho trustee misappropriated and used in the purchase of the property in question the funds of the trust created for the appellants’ benefit by the will of Augusta Brown, as well as the trust fund created by the same will for the plaintiffs’ benefit. It may be, therefore, proper for the appellants to allege these facts as a, separate defense, if they be so advised,'but the allegations contained in the amended answer which the appellants are given leave to serve must be allegations of fact and not mere hypotheses nor conditioned upon the state of plaintiffs’ proofs at the trial, nor upon plaintiffs’ success in obtaining the relief sought in their complaint, as is attempted by the ninth defense contained in the present answer. Lazansky, P. J., Rich, Young, Hagarty and Carswell, JJ., concur.  