Opinion
July, 1935.
Order on reargument dismissing amended complaint as to defendant The Village of Larchmont for failure to state a cause of action reversed on the law, with ten dollars costs and disbursements, and motion to dismiss the amended complaint as to said defendant denied, with ten dollars costs, with leave to said defendant to answer the amended complaint within ten days from the entry of the order herein. It clearly appears that plaintiff has some rights against defendant village, which took the property involved herein for public use, by purchase, without compensating plaintiff in any wise for his mortgage interest in the property taken which continued as a lien upon the property. Respondent, in its answer to the original complaint, alleges that the plaintiff agreed to execute and deliver to it, for a nominal consideration, a release from the terms and provisions of the mortgage, which agreement the plaintiff has refused to carry out. An issue is presented for determination upon the trial. The amended complaint should not have been dismissed. Lazansky, P.J., Young and Hagarty, JJ., concur; Carswell and Scudder, JJ., dissent. The appeal from the original order dated October 24, 1934, is dismissed. Lazansky, P.J., Young, Hagarty, Carswell and Scudder, JJ., concur.