Opinion
February 13, 1942.
Appeal from Supreme Court, New York County.
Present — Martin, P.J., O'Malley, Townley, Dore and Cohn, JJ.; Martin, P.J., and Dore, J., dissent; dissenting opinion by Dore, J.
Judgment and order affirmed, with costs. No opinion.
We think we should deny this motion to dismiss under subdivisions 5 and 7 of rule 107 of the Rules of Civil Practice so that disputed issues as to jurisdictional facts and the application of the rule of res judicata to all the parties involved may be fully developed at a trial and not summarily disposed of on a motion before answer. Accordingly, we dissent and vote to reverse the judgment and order appealed from granting defendants' motion and denying plaintiffs' cross-motion to file an amended complaint and to deny defendants' said motion and grant plaintiffs' motion to file an amended complaint.
Martin, P.J., concurs.