¶1It does not appear from the answer that the alleged agreement was oral, and the objection of the Statute of Frauds is not available at this time. (Oldham v. Pinkus, 31 Misc. 768.) The agreement does not seek to modify a written contract but to establish an independent collateral agreement. (McCreery v. Day, 119 N. Y. 1.) The motion being one to strike out the answer containing denials, is in the nature of a demurrer and the allegations in the answer must be accepted as true.
¶2Motion denied, with ten dollars costs to abide event.
¶3So ordered.