COSTANZO v. MACKLER


15 A.D.2d 790 (1962)

Frank Costanzo, Respondent, v. Sol Mackler, Appellant

Appellate Division of the Supreme Court of the State of New York, Second Department.

February 13, 1962


Order reversed, without costs, and motion denied, without prejudice to such further motion with respect to said defense as plaintiff may be advised.

Although this motion to dismiss the defense as legally insufficient was made pursuant to rule 109, it was supported by defendant's voluminous testimony given during his examination before trial, and it was decided on the basis of such testimony. Rule 109, however, permits a defense consisting of new matter to be stricken...

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