Opinion
April, 1929.
Order granting defendant's motion to strike out paragraphs 4 to 8, both inclusive, of the complaint, reversed upon the law and the facts, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. The matter stricken out as irrelevant and prejudicial is not inconsistent with the plaintiff's seeking specific performance. It may be that this matter stricken out, contained in paragraphs 4 to 8, both inclusive, if believed, will establish a supplemental agreement or arrangement of such a character as to estop or render ineffectual a claim that plaintiff is in default, in connection with the stopping of payment of the ten thousand dollar check. If the foregoing be established by credible evidence it may be that this element will not prevent plaintiff from having specific performance. Lazansky, P.J., Young, Hagarty, Seeger and Carswell, JJ., concur.