Review Co. v. Lignum Chemical Works 27 A.D.2d 955

'Order of the Supreme Court, Nassau County, dated February 9, 1967, which denied plaintiff’s motion for summary judgment on its second cause of action and to dismiss defendant’s first affirmative defense, reversed, with $10 costs and disbursements, and motion granted, with $10 costs; and second cause of action accordingly severed. In our opinion there are no fact issues as to plaintiff’s second cause of action and plaintiff is entitled to judgment for the relief therein sought, particularly in view of defendant’s repeated tenders of the sum therein claimed. We also believe that the complaint is sufficient on its face; hence, the first defense, which pleads to the contrary, should have been dismissed (CPLR 3211, subd. [b]). Beldoek, P. J., Christ, Rabin, Benjamin and Munder, JJ., concur.