
    Claude Luddington, Plaintiff, v. Jay E. Millard and Others, Defendants.
    Supreme Court, Monroe County,
    November 30, 1929.
    
      
      Howard F. Barnes [James S. Bryan of counsel], for the plaintiff.
    
      Everett K. Van Allen, for the defendant The Rochester Mortgage Corporation.
   Rodenbeck, J.

It does not appear from the answer that the alleged agreement was oral, and the objection of the Statute of Frauds is not available at this time. (Oldham v. Pinkus, 31 Misc. 768.) The agreement does not seek to modify a written contract but to establish an independent collateral agreement. (McCreery v. Day, 119 N. Y. 1.) The motion being one to strike out the answer containing denials, is in the nature of a demurrer and the allegations in the answer must be accepted as true.

Motion denied, with ten dollars costs to abide event.

So ordered.  