McManus v. McManus , 400 N.Y.S.2d 392 ( 1977 )

Cross appeals from an order of the Supreme Court at Special Term, entered March 23, 1977 in Broome County, which denied plaintiff’s motion to appoint a receiver and denied defendants’ cross motion to dismiss the complaint for failure to state a cause of action. Reading the complaint in the light most favorable to plaintiff and accepting its allegations as true, we believe that it fairly spells out an action for the breach of a 1968 contract in which defendants had agreed to make payment for the purchase of certain realty. We agree with Special Term to the extent that plaintiff made an inadequate showing of entitlement to the appointment of a receiver, but disagree with its conclusion that defendants waived any defense based upon applicable Statutes of Limitations since such a defense may yet be raised in their answer (CPLR 3211, subd [e]). Accordingly, the order appealed from should be modified by reversing the third and fourth decretal paragraphs thereof, and by directing defendants to serve their answer within 10 days. Order modified, on the law and the facts, by reversing the third and fourth decretal paragraphs thereof and by inserting a direction that defendants serve their answer within 10 days after service upon them of the notice of entry of the order to be entered hereon, and, as so modified, affirmed, without costs. Sweeney, J. P., Kane, Mahoney, Larkin and Herlihy, JJ., concur.