
    John C. Hoffman, Appellant, v. George W. Whitbread, Respondent.
   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. No valid counterclaim or defense is set forth in the answer. Defendant failed to allege performance or readiness and willingness to perform the contract alleged by him. The bringing of the action in equity by plaintiff and the motion for a temporary receiver and the submission of the differences to the court were not a violation of the contract. The defendant’s contract to guarantee eight per cent dividends was not usurious. (McAnsh v. Blauner, 222 App. Div. 381.) Lazansky, P. J., Kapper, Seeger, Carswell and Scudder, JJ., concur.  