Miltenberg & Samton, Inc. v. Overseas Investors, Inc.

Order entered on May 20, 1964, granting defendant’s motion to dismiss the complaint, unanimously reversed, on the law, with $30 costs and disbursements to the appellant, and the motion denied, with leave to defendant to serve an amended answer, if so advised, within 10 days after service of a copy of the order to be entered hereon with notice of entry. The issue raised by defendant’s motion has not been satisfactorily resolved by the affidavits and should therefore be reserved for the trial. To that end an amendment of the answer to allege that plaintiff is not the real party in interest or otherwise entitled to sue appears the appropriate procedure (see Reed v. Hopkins, 10 A D 2d 897). Concur — Botein, P. J., Babin, McNally, Stevens and Steuer, JJ.