
    Max J. Buechler, Respondent, Appellant, v. Frank J. Pickrell, Appellant, Respondent.
   Order, in so far as appealed from by defendant, affirmed, with ten dollars costs and disbursements. Order, in so far as appealed from by plaintiff, reversed upon the law and the facts, without costs, and motion to strike out the first and second separate defenses to the first cause of action granted, without costs. The first defense to the first cause of action is defective in that the Statute of Frauds cannot be availed of where the complaint is framed upon the theory of an executed contract. The counterclaims, the second defense to the first cause of action and the defense to the second cause of action are defective in that all the elements necessary to constitute fraud are not pleaded. In respect of these counterclaims and defenses, defendant may have leave to plead over within ten days from service of a copy of the order hereon. Lazansky, P. J., Rich, Young, Hagarty and Carswell, JJ., concur.  