Brescia Coal, Feed & Lumber Corp. v. Scheuplein , 17 N.Y.S.2d 622 ( 1939 )

Action to compel the application of the proceeds of a policy of fire insurance to payment of plaintiff’s mechanic’s lien. Order dismissing the first cause of action set forth in the plaintiff’s amended complaint upon the ground that it fails to set forth a cause of action against the respondent modified by striking out everything in the decretal paragraph following the words “ New York Co-Operative Underwriters ” and in place thereof inserting a provision that appellant may plead over, if so advised. As thus modified, the order is unanimously affirmed, without costs. Appellant’s complaint to be served within ten days from the entry of the order hereon. The judgment appealed from is vacated. No opinion. Present —■ Hagarty, Carswell, Adel, Taylor and Close, JJ.