303 N.Y. 819 | NY | 1952
We agree with the Appellate Division that the complaint is legally insufficient (Civ. Prac. Act, § 241; Kalmanash v. Smith, 291 N. Y. 142, 153; Naumer v. Gray, 28 App. Div. 529; Steuer v. Hart, 175 App. Div. 829; see, also, Lanyon’s Detective Agency v. Cochrane, 240 N. Y. 274, 277), with the modification, however, that appellant be given ten days to plead over. The judgment should be modified by providing that plaintiff may have ten days in which to serve an amended complaint on payment of costs in all courts, and, as so modified, affirmed.
If the appellant fails to avail himself of such modification, then the judgment is affirmed, with costs.
Lewis, Conway, Dye, Fuld and Froessel, JJ., concur in Per Curiam opinion. Loughran, Ch. J., and Desmond, J., dissent and vote to deny the motion to dismiss the complaint on the ground that this pleading sufficiently complies with section 241 of the Civil Practice Act.
Judgment accordingly.