Opinion
November 18, 1932.
Appeal from Supreme Court of New York County.
Hiram C. Todd of counsel [ Clifton Cooper with him on the brief; Loucks Cullen, attorneys], for the appellant.
Samuel Hoffman of counsel [ Enos S. Booth, attorney], for the respondent.
This action involves substantially the same type of claim as that discussed in Greene v. New York United Hotels, Inc. ( 236 App. Div. 647), decided herewith. The complaint is bad for the reason that the relief demanded is merely the appointment of a receiver. Defendant has, however, answered setting up in its first defense new matter involving the same non-compliance with the terms of the underlying bond and mortgage as was discussed in the companion case. Defendant thereafter moved to compel a reply. A reply to the first defense should have been directed because it would permit the defendant to dispose of the whole action by a motion addressed to the pleadings.
Since the complaint is bad, the motion to vacate notice of defendant's examination before trial should have been granted.
The order should, therefore, be reversed, with twenty dollars costs and disbursements, and the motions granted, with ten dollars costs.
FINCH, P.J., MARTIN and O'MALLEY, JJ., concur; McAVOY, J., taking no part.
Order reversed, with twenty dollars costs and disbursements, and motions granted, with ten dollars costs.