
    National American Company, Inc., Respondent, v. Howard S. Hoit, Individually, as Trustee for Joan E. Hoit, as Trustee for Alice G. Hoit, and as a Copartner in the Firm of Hoit, Rose & Troster, and Others, Appellants.
   Per Curiam.

The tender alleged in the first separate defense and counterclaim was not in our opinion a compliance with the contract. The reincorporation by reference of paragraphs 7 to 14 of the answer does not help to sustain the cause of action attempted to be alleged. The damages sought appear to relate only to 805 of the rights of the Manhattan Company alleged to have been purchased, and since no damages are alleged to flow from the facts appearing in the paragraphs of the answer referred to, the defendants are given leave to amend if they be so advised. At this time, however, we do not pass upon the question of whether these paragraphs may form the basis of a sufficient counterclaim. The order granting the motion to strike out the first defense and counterclaim is affirmed, with ten dollars costs and disbursements, with leave to defendants to serve an amended answer on payment of said costs and ten dollars costs of motion at Special Term. The appeal from the order denying motion for resettlement should be dismissed. Present — Dowling, P. J., Finch, McAvoy, Martin and O’Malley, JJ. Order entered May 23, 1929, affirmed, with ten dollars costs and disbursements, with leave to defendants to serve an amended answer within twenty days from service of order upon payment of said costs and ten dollars costs of motion at Special Term. Appeal from order entered June 28, 1929, dismissed.  