Robert E. McDonnell, Appellant, v. Winthrop Realty Company, Respondent, Impleaded with Hugo S. Mack and Keystone Construction Company

Robert E. McDonnell, Appellant, v. Winthrop Realty Company, Respondent, Impleaded with Hugo S. Mack and Keystone Construction Company. Appeal from an order, entered in the New York county clerk’s office on the 33d day of April, 1909, directing judgment upon the pleadings against the defendant Winthrop Bealty Company unless it serve an amended answer within, ten days, etc. [MAJORITY — Per Curiam] Per Curiam : The defendant, respondent, has .set up no defense in its answer, flies no affidavit of merits, and does not show that in fact it has any defense to the action. Under these circumstances, we think the order appealed from should be modified by striking out the provision allowing the service of the amended answer, and as so modified affirmed, with ten dollars costs and disbursements to the appellant. Present — Ingraham, McLaughlin, Clarke, Houghton and Scott, JJ. Order modified as stated in opinion, and as modified affirmed, with ten dollars costs and disbursements to appellant. Settle order on notice.