Charles J. Babb, Respondent, v. Clyde E. Black, Defendant, and Nancy Ada Black and Others, Appellants

Charles J. Babb, Respondent, v. Clyde E. Black, Defendant, and Nancy Ada Black and Others, Appellants. [MAJORITY] Order granting plaintiff’s motion for summary judgment and judgment entered thereon reversed upon the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. The denial in the defendant appellants’ answer of the allegation in the complaint “ that while the prisoner, Clyde E. Black, was outside of the jail liberties in the county of Queens, plaintiff commenced this action by serving a copy of the summons in this action upon Clyde E. Black,” raises an issue of fact as to these appellants which plaintiff should be compelled to prove upon the trial. Lazansky, P. J., Rich, Kapper and Seudder, JJ., concur; Carswell, J.¡ dissents.