
    Thomas V. Kelly, Respondent, v. Verne P. Rathburn, Appellant.
   The conflicting allegations in the affidavits are sufficient to warrant a trial of the issues. The fact that the defendant’s counterclaim is against a person not a party to the action is not sufficient to warrant a dismissal thereof. The counterclaim may be maintained against this plaintiff up to the amount of plaintiff’s demand. (Civ. Pr. Act, § 267, subd. 3.) Lazansky, P. J., Hagarty, Johnston, Adel and Taylor, JJ., concur.  