Leiter v. Spingarn

The motion under rule 109 of the Rules of Civil

Practice, made by the defendant Falk, brought into the action pursuant to section 271 of the Civil Practice Act, to dismiss the counterclaim on the ground that it fails to state a cause of action, could not be granted for that rule does not authorize any one but a plaintiff to make such an application. (Stokes v. Ottoman American Development Co., 132 Misc. 125; affd., 224 App. Div. 833.) The court below was in error in stating that the decision of the Special Term was affected by the decision of the Appellate Division in 223 Appellate Division,…