Gaston & Co. v. Independence Indemnity Co. — 216 A.D. 824

Majority

p. 824

First Department,

May, 1926.

Gaston & Company, Inc., Respondent, v. Independence Indemnity Company, Appellant.

Headnote

Pleadings—when motion for judgment should be denied because action is premature.

Appeal from an order of the Supreme Court, made at the New York Special Term and entered in the New York county clerk’s office on March 9, 1926, granting plaintiff’s motion under rules 104 and 112 of the Rules of Civil Practice to strike out answer, and also from the judgment in favor of the plaintiff, entered in said clerk’s office on March 10, 1926, pursuant to said order.

This court having held in Gaston & Company, Inc., v. Storch (post, p. 831), herewith decided, on appeal by the defendant Storch from an order of the Special Term denying his motion to compel the plaintiff to accept an amended answer, pursuant to sections 244 and 283 of the CivirPractiee Act, that such service was timely and that the answer should be received by the plaintiff, and this court having vacated the judgment entered in said action in plaintiff’s favor against said Storch on December 24, 1925, for $24,486.34, the present action is premature. The order, therefore, granting summary judgment herein was improper, and the said order and the judgment appealed from, thereupon entered, should be reversed, with costs to the appellant, and the motion for judgment denied, with ten dollars costs Present — Clarke, P. J., Merrell, Finch and Martin, JJ. Judgment and order reversed, with costs, and motion denied, with ten dollars costs.