Jaylo Realty Corp. v. Bobnor Realty Corp.

Present — Dore, J. P., Cohn, Callahan, Van Voorhis and Shientag, JJ.; Dore, J., dissents as follows: Plaintiff’s contention is that plaintiff used and occupied the premises for business purposes during the period of alterations and that “ the alterations were in fact its business ”, On the admissions made by plaintiff in which no such state of facts was set forth or claimed the court properly dismissed pursuant to section 476 of the Civil Practice Act. It is clear that plaintiff’s possession was constructive only and the principle of WMCA, Inc., v. Blockfront Realty Corp. (272 App. Div. 800) is applicable. I dissent and vote to affirm. [See ante, p. 646; 276 App. Div. 893.]