Opinion
December 20, 1946.
Appeal from Supreme Court, New York County.
By their motion pursuant to section 1293 of the Civil Practice Act for the dismissal of the petition as a matter of law, the respondents, for the purposes of the motion, admitted the truth of all factual allegations and every favorable inference which might reasonably be drawn therefrom. ( Matter of Schwab v. McElligott, 282 N.Y. 182; Matter of Hines v. State Board of Parole, 293 N.Y. 254, 258.)
Since facts sufficient were set forth in the petition to indicate that petitioner may have been entitled to the relief which he sought, the court at Special Term should have denied the motion to dismiss with leave to answer the petition. ( Matter of Bresnick v. Saypol, 270 App. Div. 837.)
The order appealed from should therefore be reversed, with $20 costs and disbursements to the appellant, with leave to the respondents to answer the petition within ten days after service of the order to be entered herein, on payment of said costs.
Martin, P.J., Glennon, Cohn, Callahan and Peck, JJ., concur.
Order unanimously reversed, with $20 costs and disbursements to the appellant, with leave to the respondents to answer the petition within ten days after service of order, with notice of entry thereof, on payment of said costs.