Opinion
March 9, 1961
Appeal by defendant bank, in an action to foreclose a lien under a public improvement contract, from an order of the Supreme Court at Special Term which denied said defendant's motion for an order striking out the answer of defendant United States of America and for summary judgment in favor of plaintiff and of defendant bank and against all of the other defendants, as prayed for in the answer of said defendant bank. In addition to the defects in procedure and deficiencies in proof noted by Special Term, we find lacking the essential proof as to the status of the action as respects service of process, pleadings, cross pleadings and motion papers; as to appearances, pleadings or defaults by such parties as defendant contractor and defendant S. Leto Construction Corp. (cf. Matter of Leto Constr. Corp. v. Herkimer Constr. Corp., 8 A.D.2d 1, 4-5) and others as well; and as to the status and rights of those parties to whom notice of motion and notice of appeal were directed but who did not join in stipulation of the papers on appeal. If, however, appellant can at Trial Term support the contentions advanced here, relief should follow without undue delay or inconvenience. Order unanimously affirmed, without costs.