(dissenting). I concur that the counterclaim is clearly insufficient. It also seems to me that the defense is likewise invalid because while the defense alleges as a conclusion that the note was given without consideration, yet in another portion of tMs same defense it is pleaded that the note was given in payment of the stock subscribed for.
Appellant claims that the note is void because, under the provisions of the Stock Corporation Law (§ 69), no corporation shall issue shares except for money, labor or property actually received for the use of the corporation.
In Furlong v. Johnston, No. 1 (209 App. Div. 198; affd., 239 N. Y. 141) the note of a solvent person was held to be property within tMs section. The contention of this appellant is, therefore, without merit. In consequence the defense also is invalid.
The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to strike out granted both as to the defense and counterclaim, with ten dollars costs.
Order so far as appealed from modified by granting motion to dismiss the counterclaim interposed to the first cause of action, and as so modified affirmed, without costs.