Opinion
October, 1930.
Order denying motion of defendants Berkowsky to dismiss amended complaint and denying in part their motion to set aside notice of examination before trial reversed upon the law and the facts, with ten dollars costs and disbursements, and motion granted, with ten dollars costs; with leave to plaintiff to plead over within twenty days from service of a copy of the order herein, and without prejudice to further proceeding for examination before trial. In our opinion the amended complaint fails to state a cause of action because of the omission of the material allegations of the original complaint. The notice for the examination of the appealing defendants falls with the dismissal of the amended complaint. Lazansky, P.J., Young, Kapper, Scudder and Tompkins, JJ concur.