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The City of Yonkers v. Benjamin W. Moore and Mary D. Moore, His Wife, Impleaded with Frederick D. Breithack and Sarah J. Breithack, His Wife
Order reversed on the law, with ten dollars costs and disbursements, and defendants’ motion granted, with ten dollars costs, on the ground that the defendants had the right to serve an amended answer as of course before the decision of the motion pending to strike out the answer and dismiss the counterclaim. (Civ. Prac.
Act, § 244; Brooks Brothers v. Tiffany, 117 App. Div. 794 470; Dorf v. Corsa, 163 N. Y. Supp. 602; Woolson Spice Co. v. Columbia Trust Co., 110 Misc. 353; Hall v. Galban & Co., 164 App. Div. 873.) The rule would be otherwise had the motion been decided before amendment. (Huebshman v. Kugelman, 193 App. Div. 702; Lee v. Jacob, 38 id. 531; Ross v. Ross, 25 Hun, 642.) Lazansky, P. J., Kapper, Hagarty, Tompkins and Davis, JJ., concur.