(concurring in part and dissenting in part). I concur, except as to allowing an amendment which I would deny, upon the ground that the matter asserted in the defense and counterclaim is inconsistent with and defeating of the written agreement. The agreement is complete upon its face and any such additional agreement as defendant claims would normally be incorporated in the formal writing. The alleged oral aside which defendant now sets up is not admissible to vary and reverse the written agreement. Solemn written warranties would mean little if the warrantor were permitted to plead that orally it was agreed that the warranty was not his but was the warranty of the party to whom it was given in the written agreement.
Does, Cohn and Bastow, JJ., concur with Callahan, J.; Peck, P. J., concurs in part and dissents in part in opinion.
Order reversed, with $20 costs and disbursements to the appellant and the motion granted, with leave to serve an amended answer.