Terf Construction Corp. v. Gallagher — 256 A.D. 900

Majority

p. 900

Terf Construction Corp., Appellant, v. John Gallagher, as President of the Operative Plasterers’ and Cement Finishers’ International Association, Local No. 60, Greater New York Employing Plasterers’ Association, Inc., Arthur Rhodes, Individually and as President and Managing Director, and “John Doe,” Being Respectively Ficititious, True Names Unknown to Plaintiff, Party Intended Being the Treasurer of the New York Plastering Code Committee, James A. Patterson, Individually and as President of the Contracting Plasterers’ Association of Greater New York, Pasquale Grassi, Also Known as Patsy Grassi, Anthony Morell, Gasper Morell, Bernard Gagliano, John Gagliano, Gagliano-Indelicato, Inc., Joseph F. Valente, John F. Kent, and “John Doe,” “ Richard Roe,” “Jim Joe,” and “Frank Black,” First and Last Names Unknown to Plaintiff, Parties Intended Being Members of the Associations Above Mentioned, Respondents.

We think that the issue as to whether defendants were released by plaintiff should not have been summarily decided upon the affidavits submitted. Upon the proof it does not conclusively appear that the claims against the defendants set forth in the complaint have been released.

The orders granting the motions to dismiss the complaint and the judgment entered thereon should be reversed, with costs, and the motions denied, with leave to defendants to set up the claim of release by answer within twenty days after service of a copy of order, with notice of entry thereof, upon payment of said costs.

Present — Martin, P. J., O’Malley, Townley, Cohn and Callahan, JJ.

Orders and judgment unanimously reversed, with costs, and the motions to dismiss the complaint denied, with leave to the defendants to answer, setting up the claim of release, within twenty days after service of a copy of the order, with notice of entry thereof, upon payment of said costs.