207 Misc. 253 | N.Y. Sup. Ct. | 1955
Defendant Communist Party of the United States moves to dismiss the complaint for insufficiency and to strike out portions of paragraphs 2 and 3 of the complaint as scandalous, impertinent, and prejudicial. The contention is that plaintiff has failed to allege the claimed tortious act was authorized or ratified by the several members of the unincorporated association and therefore the action is not maintainable at suit of plaintiff against its president (Martin v. Curran, 303 N. Y. 276). The principle is correctly stated but cannot serve to defeat the cause of action as alleged. This is so because the allegations that the defendant has its principal office here for the guidance of its eommunizing conspiracy and that the defendant Publishers New Press, Inc., and its personnel were under the party’s iron discipline are not scandalous, impertinent, or prejudicial. Legal and factual considerations touching upon the nature of the Communist party are sufficient to supply the requirement of knowledge and consent.
The motion is denied in all respects.