304 N.Y. 872 | NY | 1952
So much of the order of the Appellate Division as affirmed the Special Term orders appealed from, to the extent that they strike out the first two separate affirmative defenses in the amended answer, is affirmed, without costs, and the first, third and fourth certified questions are answered in the affirmative. To answer the second certified question would determine the very issue which the Appellate Division decided should “ await an examination of North Carolina law at such time as the merits of this defense may be considered.” (278 App. Div. 146, 150.) We have no such advisory jurisdiction (Mary Lincoln Candies v. Department of Labor of State of N. Y., 289 N. Y. 262; Schenck v. Barnes, 156 N. Y. 316; Coatsworth v. Lehigh Valley R. R. Co., 156 N. Y. 451); indeed, we refrain at this time from indicating any view as to the sufficiency of defendant’s third affirmative defense. Moreover, the reservation of that issue rests on a proper exercise of discretion (Rules Civ. Prac., rule 103), and thus no decisive question of law is presented for review (Braunworth v. Braunworth, 285 N. Y. 151; Mencher v. Chesley, 297 N. Y. 94).
Accordingly, the second certified question is not answered, and the appeal from that part of the order of the Appellate
On the appeal of appellant-respondent: The order should be affirmed, without costs; the first, third and fourth questions certified are answered in the affirmative.
On the appeal of respondent-appellant: The appeal should be dismissed, without costs; the second question certified is not answered.
Loughran, Oh. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ., concur.
On appeal of appellant-respondent: Order affirmed, etc.
On appeal of respondent-appellant: Appeal dismissed, etc.