
    James J. Brown, Appellant, v. George W. Whitbread, Respondent, and Another, Defendant.
   Order as resettled, denying “ plaintiff’s motion to dismiss the counterclaims, defenses and setoffs contained in the defendant’s answer,” reversed upon the law, with ten dollars costs and disbursements, motion granted, with ten dollars costs, counterclaim dismissed, and defenses and so-called setoffs stricken out, with leave to defendant to plead over within ten days upon payment of said costs. The answer contains no defense. The alleged agreement set forth therein is evidently an attempt to set forth a verbal agreement in contradiction of an agreement in writing between the parties. The facts alleged fail to show that defendant has complied with the agreement which he sets up as a defense or that he is ready, able and willing to perform the same; to the contrary, the facts show his inability to perform. Lazansky, P. J., Kapper, Seeger, Carswell and Seudder, JJ., concur.  