Anderson v. Colonial Sand & Stone Co.

10 A.D.2d 852 | N.Y. App. Div. | 1960

In an action to recover damages for personal injuries, the appeals are from an order which (1) denied the motion of appellant Colonial Sand & Stone Co., Inc., to strike out paragraph “ Twenty-eight (a) ” of the amended complaint as sham (Rules Civ. Prae., rule 103) and thereupon to dismiss the amended complaint for insufficiency (Rules Civ. Prae., rule 106, subd. 4), and (2) denied the motion of appellant Montauk Oil Transportation Corp. to strike out said paragraph as sham (Rules Civ. Prac., rule 103). Appeals dismissed, with one hill of $10 costs and disbursements. The questions presented are academic in view of the fact that the allegations contained in paragraph “ Twenty-eighth (a) ” are repeated in paragraph “ Forty-fourth ” of the same cause of action pleaded in the amended complaint, and no motion has been made with respect to that paragraph. However, the merits have been considered, and the order would be affirmed if the appeals therefrom were not being dismissed. Nolan, P. J., Beldock, Ughetta, Christ and Pette, JJ., concur.