Toll v. Friedman

Plaintiffs have moved, according to their notice

of motion, “ pursuant to Section 278 of the Civil Practice Act ”, “ for an order dismissing the defendant’s first affirmative defense and counterclaim for the reason that the defendant has no legal capacity to recover upon the same; that the counterclaim is not one which may be properly interposed in the action ”. The stated grounds for the motion indicate clearly that the motion, though not so characterized, is brought pursuant to subdivisions 2 and 4 of rule 109 of the Buies of Civil Practice. That rule is limited in operation to such defects…