Majority
p. 638Abraham Miron, Appellant, v. Max M. Lipetz, Sued Herein as “Morris” “Max” Lipetz, First Names Being Fictitious and Unknown to Plaintiff, Respondent.
Order dismissing complaint under rule 107 of the Rules of Civil Practice reversed on the law, without costs, and motion denied, without costs, with leave to the plaintiff to amend the complaint within ten days from the entry of the order hereon upon payment of ten dollars costs. The affidavits read in connection with the complaint raise a question of fact, and proper amendment of the complaint may be made to cover the question of the Statute of Frauds. Lazansky, P. J., Carswell, Davis, Adel and Taylor, JJ., concur.