Opinion
March 15, 1940.
Appeal from Supreme Court of New York County, SCHMUCK, J.
Charles H. Tuttle of counsel [ Breed, Abbott Morgan, attorneys], for the appellant.
Samuel P. Gilman, for the respondent.
Present — MARTIN, P.J., GLENNON, DORE, COHN and CALLAHAN, JJ.
All the allegations of fraud are not mere generalities. Assuming as we must that all the allegations of the pleading are true, it sufficiently states a defense and counterclaim to the action and should not have been stricken out. ( Mersereau v. Simon, 255 App. Div. 997.)
The order so far as appealed from should be reversed, with twenty dollars costs and disbursements, and the motion denied, with leave to the plaintiff to reply within ten days after service of order on payment of said costs.
Order, so far as appealed from, unanimously reversed, with twenty dollars costs and disbursements, and motion denied, with leave to the plaintiff to reply within ten days after service of order on payment of said costs.