282 A.D. 1066 | N.Y. App. Div. | 1953
Appeal by defendants Alpert and Sherman from a resettled order which denied their motion to dismiss the complaint under rules 102 and 103, subdivision 4 of rule 106, and subdivisions 5 and 8 of rule 107 of the Rules of Civil Practice. Appeal by defendant, 98 Montague, Inc., from an order denying its motion to dismiss the complaint and the two causes of action contained therein for failure to state facts sufficient to constitute a cause of action, or in the alternative to strike out paragraphs and portions of paragraphs thereof. On appeal by defendants Alpert and Sherman, resettled order affirmed, with $10 costs and disbursements. The first cause of action is substantially the same as the third cause of action which was held sufficient in Andrews v. Lebis (280 App. Div. 940 [two cases]); and it cannot be said, as a matter of law, that it is barred by the three-year Statute of Limitations contained in subdivision 7 of section 49 of the Civil Practice Act (cf. Andrews v. Lebis, 278 App. Div. 858, 1005). While the second cause of action is insufficient for the reasons stated with respect to the fourth cause of action in Andrews v. Lebis (279 App. Div. 1013), it was not error to deny the motion by these defendants to dismiss the complaint, which was directed to the complaint as a whole and not to each cause of action. Under such circumstances, the motion to dismiss for failure to state a cause of action must be denied if either cause of action is sufficient. {Advance Music Corp. v. American Tobacco Co., 296 N. Y. 79; Fusco v. Brooks, 263 App. Div. 845; Halstead v. General My. Signal Co., 268 App. Div. 1060; Schauder v. Weiss, 274 App. Div. 940; Log Cabin Mest v. Alpine Wine & Liquor Corp., 280 App. Div. 943.) Appeal by defendant 98 Montague, Inc., dismissed, without costs, that defendant not having appeared or filed a brief. Nolan, P. J., Wenzel, MaeCrate, Schmidt and Beldock, JJ., concur. [See 283 App. Div. 669.]