
    Emil Leiter, Respondent, v. Leopold Spingarn and Another, Copartners, Doing Business as Leopold Spingarn & Co., Appellants.
    Supreme Court, Appellate Term, First Department,
    June 17, 1930.
    
      J. Leon Israel, for the appellants Leopold Spingarn and Bancroft Smith.
    
      Joseph P. Crell, for the respondent David Falk.
    
      Wechsler & Fleischer, for the respondent Leiter.
   Per Curiam.

The motion under rule 109 of the Rules of Civil

Practice, made by the defendant Falk, brought into the action pursuant to section 271 of the Civil Practice Act, to dismiss the counterclaim on the ground that it fails to state a cause of action, could not be granted for that rule does not authorize any one but a plaintiff to make such an application. (Stokes v. Ottoman American Development Co., 132 Misc. 125; affd., 224 App. Div. 833.) The court below was in error in stating that the decision of the Special Term was affected by the decision of the Appellate Division in 223 Appellate Division, 739. The decision of the Appellate Division in that case was made some months prior to the decision in 132 Miscellaneous, 125. As the defendant Falk has served no reply, the motion cannot be considered as one made on the pleadings under rule 112, for the reason that such a motion cannot be made upon the complaint (counterclaim here) alone. (Town of Potsdam v. Ætna Casualty & Surety Co., 218 App. Div. 29; Gemini v. N. Y. Cent. R. R. Co., 209 id. 442, 447.)

Order reversed, with ten dollars costs and disbursements, and motion denied.

All concur; present, Bijur, Callahan and Peters, JJ.  