The opinion
McGivern, J. (dissenting).
I dissent and would affirm.
Although I have the greatest deference for. the majority’s analysis of the substantive questions involved, nor do I disagree with it, nevertheless I feel that Special Term was correct in treating the application to dismiss the answers as premature. I also believe Special Term was correct in construing a compliance with CPLE 2104 from the totality of the writings relating to the extension of the time within which a further amended answer might be interposed, pending which a motion addressed to any defense would be deferred.
Further, I think that even “ pragmatically ”, the disposition of Special Term is preferable in view of the continued viability of the defendant’s second counterclaim. And in any event, I do not find from this submission that defendant’s counsel has “ expressed his willingness ” to have the substantive questions resolved at this time; nor do I find counsel has displayed a “ spirit ” indicating a wish that this court make a final determination on the merits. At best, I find the defendant alternatively requesting that if this court doubts the. sufficiency of the defenses, defendant be accorded an opportunity to plead again and that the motion to strike be held in abeyance until defendant has completed taking depositions. This is different *27 from a request that defendant be executed now with a golden axe.
Tilzer and McNally, JJ., concur with Steuer, J. P.; McGtvern, J., dissents in opinion.
Order entered May 9,1967, modified, on the law, to grant plaintiff’s motion to dismiss the second, third, fourth and sixth defenses and the first counterclaim; and as so modified affirmed, with $50 costs and disbursements to appellant.