Emmons v. Hirschberger

Defendants appeal from two orders denying their separate motions to dismiss the complaint, pursuant to rule 106 of the Rules of Civil Practice, for failure to state facts sufficient to constitute a cause of action. Orders affirmed, with 1026 one bill of $10 costs and disbursements, with leave to defendants to answer within twenty days from the entry of the order hereon. The complaint may be sustained under the provisions of section 232 of the Debtor and Creditor Law. These defendants did not become parties to a prior action, based upon the same. accident as is herein involved, merely because they were named as defendants therein, together with a third person, where they were not served with process and did not appear or answer. (Bennett v. Bird, 237 App. Div. 542.)' Lewis, P. J., Carswell, Adel, Aldrich and Nolan, JJ., concur. [See post, p. 1046.]