Opinion
February 11, 1937.
Appeal from Supreme Court of New York County.
Abraham J. Rosenblum, for the appellant.
Henry J. Shields of counsel [ Paxton Blair with him on the brief; Paul Windels, Corporation Counsel], for the respondents.
Present — MARTIN, P.J., McAVOY, O'MALLEY, UNTERMYER and COHN, JJ.
While the defense attacked may not be stricken out for insufficiency, we are of opinion that the good faith of the defendant commissioner with respect to obtaining an appropriation is very much in issue. So, too, the petitioner will be entitled to offer proof as to whether provision for the payment of the salary had been made in the estimates, or otherwise.
The order, so far as appealed from, therefore, should be affirmed, but without costs.
Order, so far as appealed from, unanimously affirmed, without costs.