
    In the Matter of Employers Reinsurance Corporation, Respondent, against Robert E. Dineen, as Superintendent of Insurance, Appellant.
   The Superintendent of Insurance has appealed from an order of the Albany Special Term striking out, on petitioner’s motion, his amended and supplemental answer interposed as an affirmative defense. This is a proceeding against the Superintendent of Insurance to compel him to refund to petitioner the sum of $17,209.57. The basis of the petition is that petitioner paid taxes for the years 1935, 1936 and 1937 based, as to the amount of $17,209.57, upon premiums received outside the State under contracts of reinsurance made outside the State. It is petitioner’s contention that this refund is authorized and required by section 559 of the Insurance Law. The Superintendent has asserted as a defense additional taxes for the years 1935 and 1936 amounting to $9,817.80. The Special Term struck out this defense on the theory that in reality it is a counterclaim. In our opinion this defense is not a counterclaim in any sense and was properly interposed as a defense in this proceeding. The order of the Special Term should be reversed on the law and the motion denied. Order reversed on the law, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. All concur. [See post, p. 836.]  