Mandel v. Silverstein , 259 A.D. 826 ( 1940 )

In an action in partition the respondent answered, denying ah the material allegations of the complaint “ except as admitted hereafter.” The only further allegations in the answer were contained in an alleged counterclaim. This counterclaim was thereafter struck out and no appeal has been taken from that decision. Consequently the bald denials remained without any admissions and created issues that could only be determined upon a trial. Notwithstanding, the respondent moved for a reference as though no issues existed except the rights and interests of the several parties in the described premises. From an order granting such motion and from an order granting a reargument of the motion and upon reargument adhering to the original decision the plaintiff appeals. Order of the County Court of Nassau County entered on reargument, in so far as appealed from, reversed on the law, with ten dollars costs and disbursements, and motion denied, without costs, without prejudice to the right of the respondent to a renewal of the motion after a formal withdrawal of her answer if she be so advised. Appeal from original order dated October 24, 1939, dismissed, without costs. Lazansky, P. J., Hagarty, Adel, Taylor and Close, JJ., concur.