Opinion
November 13, 1931.
Appeal from Supreme Court of New York County.
Samuel Saltzman, for the appellant.
Max Schmer of counsel [ Joseph J. Mintzes with him on the brief; Schmer Wechsler, attorneys], for the respondent.
Present — FINCH, P.J., McAVOY, MARTIN, O'MALLEY and TOWNLEY, JJ.
Our affirmance of the order denying plaintiff's motion for summary judgment ( 228 App. Div. 769) is not conclusive of the question here presented. It was a holding merely that the defendant had presented a triable issue. Nor by our affirmance did we adopt the reasoning of Special Term.
In the circumstances we are of opinion that the motion to amend should have been granted.
The order should be reversed, with ten dollars costs and disbursements, and the motion granted upon payment of taxable costs to the date of the making of the motion.
Order reversed, with ten dollars costs and disbursements, and motion granted on payment of taxable costs to date of the making of the motion.