Harper Organization, Inc., Respondent, Appellant, v. Brick and Metal Wrecking Corporation, Defendant, Impleaded with Maryland Casualty Company, Appellant, Respondent

First Department, January, 1928. Harper Organization, Inc., Respondent, Appellant, v. Brick and Metal Wrecking Corporation, Defendant, Impleaded with Maryland Casualty Company, Appellant, Respondent. Appeal by the defendant Maryland Casualty Company from so much of an order of the Supreme Court, entered in the New York county clerk’s office on June 1, 1927, as grants plaintiff’s motion to strike out the second and third defenses in said defendant’s amended answer; and by the plaintiff from so much of said order as denies its motion to strike out the first defense in said answer. [MAJORITY — Per Curiam.] Per Curiam. The third defense states facts from which it might be inferred that there was improper collusion between the plaintiff and the defendant principal, and fraudulent concealment from the defendant surety of the relations which gave rise to this collusion. Giving to it, therefore, the inferences most favorable to the- defendant surety, we hold it states facts sufficient to constitute a defense. The order appealed from will, therefore, be modified by denying the motion as to the third defense, and as thus modified affirmed, with ten dollars costs and disbursements to the defendant, appellant. Present — Dowling, P. J., Merrell, Finch, McAvoy and Proskauer, JJ. Order so far as appealed from modified by denying the motion as to the third defense, and as so modified affirmed, with ten dollars costs and disbursements to the defendant, appellant.