Opinion
March, 1930.
Order affirmed, with ten dollars costs and disbursements, on the ground that permission granted to serve the amended reply was within the discretion of the Special Term, and that the plaintiff has a right to plead the defense of the Statute of Frauds. The evidence adduced at the trial will determine whether such plea is sustained. Hinman, Acting P.J., dissents and votes for a reversal on the ground that the contract set forth in appellant's answer, not being one for the creation or transfer of an interest in realty, is not within the Statute of Frauds, and the issues between the parties should be narrowed at this time accordingly.
See Real Prop. Law, §§ 242, 259. — [REP.