Opinion
May 21, 1970
Appeal from the Erie Special Term.
Present — Del Vecchio, J.P., Marsh, Gabrielli, Moule and Henry, JJ.
Judgment unanimously modified by deleting the second decretal paragraph, and as so modified affirmed, without costs. Memorandum: Upon denial of the motion to dismiss, the petitioner's affirmative relief should not have been granted before permitting respondents appellants to answer (CPLR 7804, subd. [f]).