Smith v. Young

273 A.D. 868 | N.Y. App. Div. | 1948

The motion is referred to the court that rendered the decision. Present — Lewis, P. J., Carswell,, Johnston, Adel and Wenzel, JJ. Motion for reargument or to resettle order denied, without costs. On the court’s motion, the decision of this court handed down January 19, 1948 (ante, p. 815), is amended to read as follows: Order denying plaintiff’s motion for summary judgment and granting defendants’ motion for leave to serve an amended answer, affirmed, with $10 costs and disbursements. The decision at Special Term upon the second motion for an examination before trial established the right of plaintiff’s counsel to continue the action. (Bloch v. Bloch, 131 App. Div. 859, 861.) However, the affidavits present triable issues of, fact as to the amount due plaintiff at the commencement of suit and the amount due from plaintiff for rent. Present — Lewis, P. J., Carswell, Johnston, Sneed and Wenzel, JJ.