
    First Department,
    April, 1932.
    Walter Reade, Respondent, v. Isaac Miller, Appellant.
   Per Curiam.

The order appealed from in so far as it strikes out the second defense is erroneous. The complaint is based upon a written agreement by which, among other things, plaintiff agreed to close and keep closed a theatre in return for which defendant agreed to pay plaintiff a certain sum. Recovery of the amount claimed to be due thereunder is sought in this action. In the second defense we find the allegation that plaintiff did not perform the conditions of the agreement in that he refused, among other things, to keep that theatre closed. The order appealed from should be modified by reinstating the second defense and as so modified affirmed, without costs, with leave to defendant to plead anew as to the counterclaim upon payment of ten dollars costs awarded to plaintiff at Special Term. Present — Finch, P. J., Merrell, McAvoy, Martin and Sherman, JJ. Order modified by reinstating the second defense, and as so modified affirmed, without cost';, with leave to the defendant to plead anew as to the counterclaim within ten days from service of order upon payment of ten dollars costs awarded to plaintiff at Special Term.  