Order denying plaintiff’s motion for summary judgment reversed on the law and the facts, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. In our opinion, the affidavits submitted by the defendants in opposition to the motion did not set forth facts sufficient to entitle them to defend. It was incumbent upon the defendants not only to set forth in their affidavits the alleged oral agreement but. also to show facts sufficient to take such agreement out of the Statute of Frauds. * The affidavits submitted in opposition to plaintiff’s motion were insufficient for that purpose. In view of this decision, the appeal from the order denying plaintiff’s motion to strike out the defenses contained in the amended answer is dismissed, without costs. Lazansky, P. J., Young, Hagarty, Carswell and Tompkins, JJ., concur.
See Real Prop. Law, § 259; Pers. Prop. Law, § 31, subd. 1; Id. § 85, as added by Laws of 1911, chap. 571.— [Rep.