Opinion
June 19, 1962
Order entered on September 15, 1961, denying defendants' motion for summary judgment and granting cross motion of plaintiff to strike out the defense of Statute of Frauds, unanimously affirmed, with $20 costs and disbursements to plaintiff-respondent. On the present state of the pleadings the affirmative defense based on the Statute of Frauds was properly stricken. It may be, however, if the proof should vary from the complaint with respect to the oral agreement made for the payment of premiums, that defendants will be entitled to raise the defense either by way of amendment to its pleading or even without such amendment. ( Fanger v. Caspary, 87 App. Div. 417; Anno. — Pleading Statute of Frauds, 158 A.L.R. 89, 134.)
Concur — Breitel, J.P., Rabin, Valente, McNally and Stevens, JJ.