
    Israel D. Heller, Respondent, v. E. A. White Organization, Inc., Appellant, and Another, Defendant.
   Order striking out appellant’s separate defense reversed upon the law and the facts, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Upon plaintiff’s own showing he knew he was dealing with the agent as such and his agreement was subject to the owner’s approval and subject to the latter’s rejection of the agreement. Such memoranda as were entered into were tentative. Moreover, there was clearly 3 mistake of fact, from which the appellant may be entitled to be relieved and which it has a right to allege as an equitable defense. Kelly, P. J., Manning, Young, Kapper and Hagarty, JJ., concur.  