Gubner v. Wafer

231 A.D. 857

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1930
• Status: Published

Opinion

Order denying plaintiffs’ motion to strike out the fifth separate defense reversed upon the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to serve an amended answer within ten days from service of a copy of the order herein. The defense of estoppel is insufficient in that there is no allegation that defendants made the improvements in ignorance of the fact that Davis Realty & Construction Co., Inc., or its predecessors claimed title to the property, and no allegation that Davis Realty & Construction Co., Inc., or its predecessors knew that defendants were making improvements. Lazansky, P. J., Kapper, Scudder and Tompkins, JJ., concur; Hagarty, J., dissents.