
    Rosanna M. Stammel, as Executrix of John H. Stammel, Deceased, Respondent, v. Robert S. Enright, Appellant.
   In an action for an accounting by defendant, as liquidating partner of a partnership with plaintiff’s testator, defendant appeals from an order which dismissed a counterclaim and struck out specified paragraphs thereof, with leave to defendant to set up any portion of the counterclaim as a defense. Order affirmed, with $10 costs and disbursements. Defendant’s time to plead in conformity with the order is extended until ten days after the entry of the order hereon. The counterclaim failed to state facts from which it could be found that the refusal of plaintiff to accept payment of an amount alleged to have been agreed upon in an account stated prevented the defendant from liquidating the partnership, or caused any damage to him, or was a breach by plaintiff of any agreement. The order appealed from does not preclude defendant from pleading as a defense any portion of the matter which he pleaded in the counterclaim. However, to constitute a defense to this action by plaintiff, as an executrix, the account stated must have been agreed to by her subsequent to her appointment. Nolan, P. J., Carswell, Johnston, Adel and MacCrate, JJ., concur.  