District Court, S.D. New York December 29, 1955 (Pfeiffer v. Frank)

HERLANDS, District Judge.

This motion by defendants is based upon both F.R.C.P. Rule 12(b) (6) and Rule 56, 28 U.S.C.A. The motion, in so far as it is based upon Rule 12(b) (6), is denied upon the authority of Dioguardi v. Durning, 2 Cir., 1944, 139 F.2d 774. See Field and Kaplan, Materials for a Basic Course in Civil Procedure (1953), Note at 391-392.