Continental Bank & Trust Co. v. 23-24 Corp.

Per Curiam.

In view of the provisions contained in the next to the last paragraph of the portion of the building loan agreement, which is Exhibit “A” annexed to the answer and to which the trustee was not a party, it is quite apparent that the court at Special Term correctly determined that the first and second defenses should have been stricken from the answer. The court properly held that the matter alleged in the third defense and counterclaim is insufficient as a defense.

While the trust agreement which is referred to at great length in respondent’s brief may indicate that the appellant has no defense, still, since it is not a part of the record, we have not considered it otherwise than as pleaded in disposing of the questions involved on this appeal.

The order appealed from should be affirmed, with twenty dollars costs and disbursements, with leave to the defendant, appellant, to plead over within twenty days from service of order, upon payment of said costs and the ten dollars costs awarded at Special Term.

Present — Martin, P. J., Merrell, Townley, Glennon and Untermyer, JJ.

Order affirmed, with twenty dollars costs and disbursements, with leave to the defendant, appellant, to plead over within twenty days from service of order upon payment of said costs and ten dollars costs awarded at Special Term.