Opinion
Argued October 1, 1928
Decided October 9, 1928
Appeal from the Supreme Court, Appellate Division, First Department.
Osmond K. Fraenkel for appellants.
Abraham Benedict and Gustavus A. Rogers for respondent.
Without attempting to determine the effect of the admissions of the supplemental complaint in their bearing on the defendants' counterclaim, we hold that they are not so inconsistent with the cause of action for an account stated as to justify a dismissal of the original complaint at this stage of the controversy.
No other question has been certified to this court.
Neither in the supplemental pleading, nor in the reply to the amended answer, is there an unequivocal admission that the plaintiff has charged his account with a lien in the defendants' favor.
The order should be affirmed with costs, and the question certified answered "No."
CARDOZO, Ch. J., POUND, CRANE, ANDREWS, LEHMAN, KELLOGG and O'BRIEN, JJ., concur.
Order affirmed, etc.