Cornehlsen v. Dudensing

270 A.D. 1037 | N.Y. App. Div. | 1946

Order granting motion by defendants to dismiss the complaint under subdivision 5 of rule 106 of the Rules of Civil Practice upon the sole ground that the complaint does not state facts sufficient to constitute a cause of action, reversed on the law, with $10 costs and disbursements, and the motion denied, with $10 costs. The complaint states a good cause of action against all of the defendants at law. When a motion is made to dismiss on the ground stated, it must fail if the facts stated in the complaint are sufficient to constitute any cause of action (Reese v. Associated Indemnity Corp., 266 App. Div. 862; Wainwright & Rage v. Burr & McAuley, 272 N. Y. 130; Abbey V. Wheeler, 170 N. Y. 122), and for the purposes of the motion the allegations of the complaint are to be taken as true and to be deemed recitals of established facts. (Bun é Bradstreet, Inc., v. City of New York, 276 N. Y. 198, 201; O’Connor v. O’Connor, 263 App. Div. 820, affd. 288 N. Y. 579.) With the allegations so interpreted, there was no release resulting from the extension agreements. (Commercial Casualty Ins. Co. v. Roman, 269 N. Y. 451; Murray V. Marshall, 94 N. Y. 611; Winslow v. Stoothoff, 104 App. Div. 28; 50 C. J., Principal and Surety, § 202.) Defendants are given ten days to answer after the entry and service of the order to be entered hereon. Lewis, P. J., Carswell, Adel, Aldrich and Nolan, JJ., concur.