5 A.D.2d 987 | N.Y. App. Div. | 1958
The complaint as to defendant Sutro Bros. & Co., was dismissed pursuant to rule 107 of the Rules of Civil Practice on the ground that the Statute of Frauds barred the causes of action alleged therein. While on the record before Special Term that disposition was warranted, leave should nevertheless be granted to plaintiff to serve an amended complaint — if plaintiff is so advised and if the facts support it — to allege causes of action which may withstand an attack based on the Statute of Frauds. On the branch of the appeal by defendants Merkin So Co. and Hermann Merkin, we hold that the second cause of action should have been dismissed on their motion pursuant to rule 106. The first cause of action, which was properly eliminated, charged no fraud against these defendants. The eonelusory allegations of the second cause as to a conspiracy with the other defendants are insufficient to implicate the Merkin defendants and to impute to them the knowledge and conduct of the others. Order is modified on the law, and in the exercise of discretion to the extent of dismissing the second cause of action as to defendants Merkin & Co. and Hermann Merkin, and granting leave to plaintiff to serve an amended complaint as to all defendants within 20 days after service of a copy of the order to be entered hereon with notice of entry; and as so modified, affirmed, with costs to defendants-respondents. Settle order.
