Opinion
May 19, 1944.
Appeal from Supreme Court, New York County.
Present — Martin, P.J., Townley, Untermyer, Dore and Cohn, JJ.
The reply of defendant Helen Jackson to the cross claims of the impleaded defendant Stern sufficiently alleged charges of carelessness, failure to investigate and properly protect her rights in connection with the settlement which she seeks to set aside. We must assume for the purpose of the motion to strike the reply for insufficiency on the face of the pleadings that all the allegations are true. Accordingly, it was error to strike out the reply and grant judgment in favor of the impleaded defendant.
The consolidated order and judgment striking out the reply and granting judgment in favor of defendant Stern against defendant Jackson should be reversed, with costs to the appellant and the motion denied, and the action severed and continued as to the issues between defendants Helen Jackson and Irwin Stern.
Order and judgment unanimously reversed, with costs to the appellant, the motion denied, and the action severed and continued as to the issues between defendant Helen Jackson and Irwin Stern. Settle order on notice.