
    Roman Ornamental Plastering Corporation, Respondent, v. Fidelity and Deposit Company of Maryland, Appellant.
   Order granting motion to strike out defendant’s answer as sham, with the judgment thereon, reversed on the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Order denying resettlement of the first order reversed on the law in so far as it denies the defendant the right to serve an amended answer, without costs, with leave to the defendant to serve an amended answer within ten days after the entry of this order if so advised, on payment of ten dollars costs. The answer, though defective, was sufficient in view of the allegations of the complaint. In any event the defendant should have been permitted to serve an amended answer, it appearing that it had a meritorious defense. (Rules of Civil Practice, rule 104.) It was proper for the defendant to use affidavits on the motion to show that the answer was not in fact sham and that the defendant had a substantial defense on the merits. (Fleischer v. Terker, 259 N. Y. 60, 62; Flushing Manor, Inc., v. Hotkin, 234 App. Div. 716.) Lazansky, P. J., Young, Hagarty, Carswell and Davis, JJ., concur.  