Somerville v. St. Louis Construction Co.

241 A.D. 750

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 15, 1934
• Status: Published

Opinion

Order modified so as to provide that the third, fourth and fifth ordering paragraphs be struck out, and as so modified affirmed, with ten dollars costs and disbursements to respondent, with leave to appellant, upon payment of such costs and within ten days from the entry of the order herein, to serve a new pleading by setting up the facts, if any, showing the defect in title, the superiority of the city’s claim and the appellant’s obligation to discharge the same. It would then be permissible for plaintiff to reply thereto by appropriate denials and by setting up any facts which she may have upon which to base a claim of waiver or a lack of notice of the city’s alleged claim with no opportunity to defend. Lazansky, P. J., Young, Kapper, Tompkins and Davis, JJ., concur.