
    Mary E. Hewitt, Appellant, v. Donald S. Hewitt, Respondent.
   Order, entered on December 1, 1967, denying plaintiff’s motion made pursuant to CPLR 3212 to strike defendant’s answer, dismiss the three affirmative defenses contained therein and for summary judgment, unanimously modified, on the law, to the extent of dismissing the first and third defenses, and as thus modified, affirmed, with $50 costs and disbursements to abide the event. In this action to recover arrears due under the terms of a separation agreement and for counsel fees and disbursements, defendant asserted, as his first defense, that the agreement was void as a matter of law and public policy and, as his third defense, that disputes under the agreement should be submitted to arbitration. However, in opposing plaintiff’s motion, defendant stated that he was not relying upon said defenses, thereby abandoning same. Again, upon this appeal, defendant stated that he does not rely on the defenses of arbitration [and] invalidity ”. Under the circumstances these defenses should be dismissed. We conclude, however, that there are issues of fact raised with respect to the second affirmative defense as set forth in the decision of Special Term. Concur — Eager, J. F., Capozzoli, Tilzer, McGivern and Rabin, JJ.  