Opinion
April 5, 1940.
Appeal from Supreme Court of New York County, VALENTE, J.
Frank Weinstein of counsel [ Samuel J. Levinson with him on the brief; Weinstein Levinson, attorneys], for the appellant.
William E. Vogel of counsel [ J. Frederic Taylor with him on the brief; Burke Burke, attorneys], for the respondent.
Present — MARTIN, P.J., UNTERMYER, DORE, COHN and CALLAHAN, JJ.
Without consideration of the other questions presented, the order should be reversed and the motion denied for the reason that the complaint alleges that the defendant's obligation under the modified contract was assumed "for mutual considerations moving from each to the other" party. ( California Packing Corp. v. Kelly S. D. Co., 228 N.Y. 49.)
The order should be reversed, with twenty dollars costs and disbursements, and the motion denied, with leave to the defendant to answer within ten days after service of order with notice of entry thereof, on payment of said costs.
Order unanimously reversed, with twenty dollars costs and disbursements, and motion denied, with leave to the defendant to answer within ten days after service of order on payment of said costs.