Ordered that the order is modified, on the law, by deleting the provision thereof which adhered to the original determination granting that branch of the plaintiff's motion which was to dismiss the appellant's fifth counterclaim, and substituting therefor a provision denying that branch of the motion and reinstating the fifth counterclaim; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
Contrary to the appellant's contention...
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