Opinion
February 11, 1958
Order granting motion to dismiss is modified on the law and in the exercise of discretion, with costs to respondent. Appellant is granted leave to serve within 10 days from the service of a copy of the order to be entered herein, if she be so advised, an amended complaint containing an allegation that appellant was able and willing to perform, provided a reasonable adjournment of the closing had been granted by the vendor and eliminating from the complaint allegations with respect to objections to title not made on the law day, and on the condition that appellant serve with such amended complaint a stipulation (consented to in open court) that she consents to a consolidation of this action with the action for specific performance brought by respondent and now pending, and that she waives her right to a trial by jury. The order is otherwise affirmed. Settle order.
Concur — Botein, P.J., Breitel, Frank, Valente and McNally, JJ.