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ALLIED 31ST AVE. CORP. v. CITY OF NEW YORK

27 A.D.2d 948 (1967)

Allied 31st Avenue Corporation, Respondent-Appellant, v. City of New York et al., Defendants; Brooklyn Union Gas Company et al., Appellants, and New York Telephone Company, Appellant-Respondent

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

April 24, 1967

Affirmed insofar as appealed from, without costs.

We do not consider that the defendants New York Telephone Company and Consolidated Edison Company of New York, Inc., waived their right to move to dismiss the complaint on the ground of a defense founded upon documentary evidence because they failed to make such a motion prior to answer and did not allege the defense in their answer (CPLR 3211). Under the circumstances of...

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