Fitzgerald v. Bigalow

Order reversed, with ten dollars costs and disbursements, and matter remitted to the Special Term to proceed in accordance with the memorandum. Memorandum: A motion may be made under subdivision 6 of rule 107 of the Rules of Civil Practice whether or not the defendant has answered. This was not formerly the law because of section 282 of the Civil Practice Act, which, however, was repealed on March 16, 1932 (Laws of 1932, chap. 224). We held to the same effect in Crocker v. Ireland (235 App. Div. 760), although the point was not mentioned in the memorandum or in the briefs. The complaint…