Strauss v. Linsky ( 1954 )

Order unanimously modified so as to strike out the words “without prejudice, for failure of proof”, on the ground that such reservation is not authorized under rule 113 of the Rules of Civil Practice and, as so modified, affirmed. Leave is granted, however, to the plaintiff to apply at Special Term for a rehearing if he is able to supply affidavits actually setting forth the evidentiary facts heretofore found lacking. Present — Dore, J. P., Callahan, Breitel, Botein and Bergan, JJ.