Order affirmed, with costs, on the ground that the answer does not controvert the allegations of the second cause of action *592 stated in the complaint, but sets up an affirmative defense. First question certified answered in the negative; second in the affirmative. No opinion.

Concur: Cullen, Ch. J., Vann, Hiscook and Chase, JJ. Dissenting: Willard Bartlett, J. Absent; Haight and Werner, JJ.