Order denying defendant’s cross motion to dismiss the first cause of action pursuant to subdivision 5 of rule 106 of the Rules of Civil Practice, unanimously reversed, with $10 costs and disbursements to the appellant, and the motion granted, with leave to plaintiff to serve a further amended complaint within ten days after service of order with notice of entry, on payment of said *803costs. (See Slattery v. Cothran, 210 App. Div. 581.) Settle order on notice. Present — Martin, P. J., Glennon, Dore, Callahan and Peck, JJ.