228 A.D. 853 | N.Y. App. Div. | 1930
Order of the County Court of Nassau county reversed upon the law and the facts, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Upon the modification by this court of the order made by the County Court granting plaintiff’s motion to strike out the denials contained in defendant’s answer and the two defenses, and to dismiss the counterclaim therein, and granting the defendant leave to serve an amended answer on payment of costs, and as so modified affirmed, the appellant was entitled to have the judgment vacated and the issues determined upon the new pleadings. Upon appeal by defendant Marrillard Builders, Inc., from the original order, defendant was under no obligation to apply for a stay and the plaintiff, in entering his judgment, did so subject to the ultimate determination of the appeal. Rich, Kapper, Hagarty and Seudder, JJ., concur; Lazansky, P. J., concurs in result. [136 Misc. 160,]