(dissenting). We dissent and vote to reverse the order denying plaintiff’s motion for summary judgment and to grant such motion with an assessment of damages. The agreement sued on was made a part of the Nevada decree, which directed the parties to carry it out. Accordingly, any attack on the provisions of the agreement would impair the Nevada decree. The only issue sufficiently raised by defendant appears to be as to the amount due. (See Hoyt v. Hoyt, 276 App. Div. 995, affd. 301 N. Y. 589; Schacht v. Schacht, 295 N. Y. 439; Fry v. Fry, 279 App. Div. 122, 304 N. Y. 889.) This may be determined upon an assessment of damages.
We dissent and vote to deny the motion to amend the answer.
We dissent and vote to deny the motion for examination before trial.
Dore, J. P., Cohn and Yan Yoorhis, JJ., concur in Per Curiam opinion; Callahan and Breitel, JJ., dissent, in opinion.
Orders affirmed, without costs, and the parties are directed to proceed expeditiously to trial. The date for the examination to proceed shall be fixed in the order. Settle orders on notice. [See post, p. 961.]