
    Elmer F. Andrews, as Industrial Commissioner of the State of New York, on Behalf of the State Insurance Fund, Appellant, v. The City of New York, Respondent.
    First Department,
    May 13, 1938.
    
      
      Patrick S. Mason of counsel [William H. Stieglitz with him on the brief; John J. Bennett, Jr., Attorney-General, attorney], for the appellant.
    
      Edward J. McGratty, Jr., of counsel [Oscar S. Cox and Robert W. Gilmore, with him on the brief; William C. Chanler, Corporation Counsel, attorney], for the respondent.
   Per Curiam.

Quite apart from the question as to whether affidavits might properly be considered on the motion to strike out all the matter contained in defendant’s answer as sham under rules 103 and 104 of the Rules of Civil Practice (Fleischer v. Terker, 259 N. Y. 60, 62; Monica Realty Corporation v. Bleecker, 229 App. Div. 184), defendant should be afforded an opportunity of fully developing upon a trial, the facts relative to the actual functioning and administration of the State Insurance Fund for the purpose of sustaining its contention that neither the fund nor the real estate here involved is property of the State within the meaning of section 4 of the Tax Law.

The order should be affirmed, with twenty dollars costs and disbursements.

Present — Martin, P. J., Townley, Dore, Cohn and Callahan, JJ.

Order unanimously affirmed, with twenty dollars costs and disbursements.  