Majority
p. 828Louis Cohen et al., Copartners Doing Business under the Name of Twin Smoke Shop, Appellants, v. Herman Ovberg, Respondent.
Appeal, by permission of tMs court, from so much of an order of the Appellate Term as affirmed an order of the City Court of the City of New York, Kings County, granting a motion to dismiss the amended complaint for insufficiency, with leave to replead. Order insofar as appealed from reversed, without costs, and motion denied, with $10 costs. Respondent may, if so advised, serve an answer within 10 days after the entry of the order hereon. In our opinion,
p. 829
there are questions of law which should be resolved only after a determination of the facts based upon all the evidence to be adduced at a plenary trial. Nolan, P. J., Wenzel, Beldock, Ughetta and Hallinan, JJ., concur.