Herrington v. Laimbeer

252 A.D. 66, 297 N.Y.S. 978, 1937 N.Y. App. Div. LEXIS 5583

Opinions

Per Curiam.

The decrees relied on in the first partial defense having been vacated, that defense should be stricken out. The second partial defense alleging the pendency of another action between the same parties for the same cause should be permitted to stand. The first complete defense should be stricken out because it fails to allege that the plaintiff has no interest in the subject-matter of the action. The second complete defense should be stricken out upon the ground that the action is a representative one. (Civ. Prac. Act, § 195.)

The order should be modified by striking out the first partial defense and the first and second complete defenses, and as so modified affirmed, with twenty dollars costs and disbursements to the appellant.

Present ■— Martin, P. J., Townley, Untermyer, Dore and Cohn, JJ.; Dore and Cohn, JJ., dissent.