Green v. Time, Inc.

1 A.D.2d 665 | N.Y. App. Div. | 1955

Cohn, J. (dissenting in part).

I agree that paragraphs six, eighteen and nineteen and all references to the matter therein contained in paragraph twenty of the complaint were properly stricken on the ground that the allegations in each of the paragraphs were unnecessary and immaterial. However, insofar as the complaint was dismissed for legal insufficiency, I am for a reversal of the order upon the ground that, giving the allegations of the complaint every fair intendment, plaintiff has sufficiently alleged a cause of action to recover damages for a prima facie tort. (Advance Music Corp. v. American Tobacco Co., 296 N. Y. 79; Ledwith v. International Paper Co., 64 N. Y. S. 2d 810, affd. 271 App. Div. 864, motion for leave to appeal denied 271 App. Div. 916; Gale v. Ryan, 263 App. Div. 76.) The order appealed from should be modified accordingly.

Peck, P. J., Breitel, Botein and Cox, JJ., concur in decision; Cohn, J., dissents in part and votes to modify in opinion.

Order affirmed, with $20 costs and disbursements to the respondent. No opinion.