(concurring). In my opinion, a triable issue is raised with respect to the alleged agreement whereby plaintiff agreed to accept $100 per month in “ settlement and substitution ” for the previously agreed larger alimony payments insofar as it is claimed to have been executed by eight payments of $100 each from September, 1949, to May, 1950 (McKenzie v. Harrison, 120 N. Y. 260; Concourse & 191st St. Corp. v. Freiman, 276 App. Div. 131, 134). However, since such matter was not pleaded as a partial defense (Civ. Prac. Act, § 262), I concur in the result.
Coxway, Desmoxd, Dye and Fuld, JJ., concur with Lewis, Ch. J.; Froessel, J., concurs in separate opinion; Vax Voorhis, J., taking no part.
Orders reversed, etc.