Vitarelli v. Bruson Construction Corp.

Order affirmed, with ten dollars costs and disbursements. No judgment was entered, as directed by the order made by Justice Faber, dismissing the complaint in the rescission action. In the absence of such judgment, the complaint may not be dismissed upon motion under rule 107,* on the ground that plaintiff had made an election of remedies prior to the commencement of the present action. It may be doubted if such a motion may in any event be made under the provisions of rule 107. The question in the present case must be raised by answer. (Roberge v. Winne, 144 N. Y. 709, 712.) The appealing defendants may answer within ten days from service of a copy of the order herein. Lazansky, P. J., Young, Kapper, Hagarty and Carswell, JJ., concur.