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AUSTIN v. BD. OF HIGHER EDUC.

5 N.Y.2d 430 (1959)

Richard Austin et al., Respondents, v. Board of Higher Education of the City of New York, Appellant.

Court of Appeals of the State of New York.

Decided April 9, 1959.

Attorney(s) appearing for the Case

Charles H. Tenney, Corporation Counsel (Robert E. Hugh, Leo A. Larkin and Thomas A. Brennan of counsel), for appellant.

Osmond K. Fraenkel for respondents.

Judges DYE, FROESSEL, VAN VOORHIS and BURKE concur with Chief Judge CONWAY; Judge DESMOND dissents in an opinion in which Judge FULD concurs.

Chief Judge CONWAY.

On this appeal we are called upon to answer the following question certified to us by the Appellate Division, First Department: "Was the order of the Appellate Division entered May 27, 1958, proper in denying defendant's motion to dismiss the amended complaint herein pursuant to Rule 106 of the Rules of Civil Practice, on the ground that it appears on the face thereof that the amended complaint...

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