240 A.D. 731 | N.Y. App. Div. | 1933
Order, so far as it grants the defendant’s motion to dismiss the second cause of action in the amended complaint, reversed on the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Such order, so far as it denies plaintiff’s motion for a stay, is also reversed and motion granted except as to the trial of the action. In our opinion the second cause of action in the amended complaint is not in tort. While there are allegations appropriate to an action for conversion, the contract and its breach are also alleged and this cause of action is, therefore, just as susceptible of a construction as a cause of action on contract as it is as one in tort, and plaintiff is entitled to the most favorable construction in his favor. Furthermore, the defendant, having previously moved to dismiss this cause of action on certain grounds and said motion having been finally denied, was not at liberty to move again to dismiss the same cause of action upon some other and distinct ground. On a motion to dismiss a pleading or a cause of action contained therein, a party must present all the grounds for such dismissal or waive those not presented. Lazansky, P. J., Young, Kapper, Hagarty and Scudder, JJ., concur.
