Order modified so as to provide that the motion to strike out be denied as to the first partial defense and the second complete defense, and that the motion be granted as to the third partial defense only. As so modified, the order is affirmed, with ten dollars costs and disbursements to appellant. The first defense, in which it is alleged that part of plaintiff’s alleged cause of action which existed prior to June 18,1925, did not accrue within six years next preceding the commencement thereof, is good. (Civ.
Prac. Act, §1011; Willis v. McKinnon, 178 N. Y. 451.) The second defense is good. Title in a third party and permission from that third party to go upon the property is a good defense in an action in ejectment, claiming damages for the wrongful withholding of possession. The third defense, pleaded as a partial defense in mitigation of damages, contains allegations of permanent improvement of the property under the license of a third party, alleged to be the owner, of the reasonable value of $2,500.
This is a statutory defense governed by the provisions of section 1011 of the Civil Practice Act. Defendant does not claim that the improvements were made while he held, “ under color of title,” adversely to the plaintiff. Lazansky, P. J., Kapper, Hagarty, Tompkins and Davis, JJ., concur. ■ [See post, p. 810.1
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