Opinion
November 19, 1963
Order, entered on August 8, 1962, denying plaintiff's motion for summary judgment and granting defendant's cross motion for leave to serve an amended answer, unanimously reversed on the law and in the exercise of discretion, with $10 costs and disbursements to appellant and plaintiff's motion for summary judgment granted, with $10 costs and the cross motion for leave to serve an amended answer denied. The proposed amended answer pleads substantially the same allegations as are contained in the complaint in the action disposed of by Huss v. Huss ( 19 A.D.2d 869). In the light of the conclusion there reached the defendant should not be permitted to amend. Likewise, in view of our decision Huss v. Huss ( 19 A.D.2d 869), there remains no triable issue in this action and the plaintiff wife is entitled to the relief prayed for in her complaint.
Concur — Breitel, J.P., Rabin, Stevens, Eager and Bastow, JJ.