Lucia Di Bartolo et al., Respondents, v. City of New York, Appellant

Lucia Di Bartolo et al., Respondents, v. City of New York, Appellant. First Department, January 28, 1944. Robert J. Keegan, Jr., of counsel (Murray Sendler with him on the brief; Ignatius M. Wilkinson, Corf oration Counsel), for appellant. Harry Fieldsteel of counsel (Rao, Liggio & Cannella, attorneys), for respondents. [MAJORITY — Per Curiam.] Per Curiam. There was full compliance with section 394a-l.Q of the Administrative Code of the City of New York (L. 1937, ch. 929). To the extent that the defendant relies on the stipulation of the parties to establish that the action is premature, it was incumbent on the defendant to plead that special agreement in its answer as an affirmative defense. The judgment should be affirmed, with costs. [DISSENT — Martik, P. J.] Martik, P. J. (dissenting). This action has been prematurely instituted and the complaint should be dismissed. (Casey v. City of New York, 217 N. Y. 192; Johannes v. City of New York, 257 App. Div. 197, affd. 281 N. Y. 825; and Collins v. City of New York, 257 App. Div. 988.) Townley, TTntebmyeb, Dobe and Callahan, JJ., concur in Per Curiam opinion; Mastín, P. J., dissents in memorandum. Judgment affirmed, with costs.