140 N.Y.S. 403 | N.Y. Sup. Ct. | 1913
[1] In this case, after joinder of issue, a motion 'is made by the defendant for judgment on the pleadings, viz., the complaint and answer. By section 547 of the Code of Civil Procedure,
“If either party is entitled to judgment upon the pleadings, the court may, upon motion at any time after issue joined, give judgment accordingly.”
The advantage of this summary method of determining the law of the case without the delay and expense of preparing the case for trial, and even perhaps actually trying it, only to ascertain that the complaint is insuffibient in law, is clearly pointed out by Mr. Justice Giegerich in Mitchell ,v. Dunmore Realty Co., 60 Misc. Rep. 563, 112 N. Y. Supp. 659.
“Where the defendant makes such motion, it cannot be granted if the facts stated show that the plaintiff is entitled to any relief, either legal or equitable, even though the judgment demanded is not the precise relief to which he appears to be entitled. Wetmore v. Porter, 92 N. Y. 76; Hotel Register Co. v. Osborne, 84 App. Div. 307 [82 N. Y. Supp. 609]. By making the motion the defendant admits every material fact set out in the complaint.” Per McLaughlin, J., in Clark v. Levy, 130 App. Div. 389, 392, 114 N. Y. Supp. 890, 892.
See, also, Emanuel v. Walter, 138 App. Div. 818, 123 N. Y. Supp. 491; Milliken v. Fidelity & Deposit Co., 129 App. Div. 206, 113 N. Y. Supp. 809; Jones v. Gould, 130 App. Div. 451, 114 N. Y. Supp. 956. In several of these cases the motion was made after an answer had been interposed, and the practice was again sustained in Schleissner v. Goldsticker, 135 App. Div. 435, 120 N. Y. Supp. 333, where it was expressly approved, although the Special Term had denied the motion on the ground that on such a motion the insufficiency of the complaint could not be tested. See, also, Realty Associates v. Hoage, 141 App. Div. 800, 126 N. Y. Supp. 709, and Olsen v. Singer Man. Co., 143 App. Div. 142, 127 N. Y. Supp. 697, the opinion in the latter case being read by Mr. Justice Burr. Mr. Justice Bischoff held that, after a defendant had joined issue by denial of the averments of the complaint, he could not move under this section upon the ground that the complaint is insufficient in substance (Ship v. Fridenberg, 65 Misc. Rep. 308, 120 N. Y. Supp. 969), but his decision was reversed by the Appellate Division (136 App. Div. 931, 120 N. Y. Supp. 1146), on the authority of their former decision in the same case reported in 132 App. Div. 782, 117 N. Y. Supp. 599, supra. Under these authorities, the practice pursued in the present case is regular.
Assuming, therefore, for the purpose of this motion, all the averments of the complaint to be true, the question is presented: Do they entitle the plaintiff to any relief, either legal or equitable? If they do, the motion should be denied.
The action is brought to enjoin permanently the defendant corporation, “its members, officers, agents, servants, and all persons associated
“Every practitioner of dentistry must display in a conspicuous place upon the house or in the office wherein he practices his full name. If there are more dental chairs than one in any office or dental parlor the name of the practitioner must be displayed on or by said chair in plain sight of the patient. Any person who shall practice dentistry without displaying his name as herein prescribed, and any proprietor, owner or manager of a den*407 tal office, establishment or parlor who shall fail so to display or cause to be displayed the name of each person employed as a practicing dentist or practicing as a dentist in said office, establishment or parlor, shall be guilty, of a misdemeanor and punishable upon a first conviction by a fine of fifty dollars, and upon every subsequent conviction by a fine of not less than one hundred dollars, or by imprisonment for not less than sixty days, or by both fine and imprisonment.”
The fourth paragraph alleges:
“That the purpose of said defendant corporation, as set forth in its certificate of incorporation, filed in the office of the clerk of Kings county July 24, 1912, is the manufacture and sale of tooth powders of all description, tooth brushes, dental instruments, dental chairs, and dental supplies generally.”
IJo where does it appear that the corporation has been 'formed for the purpose of practicing dentistry, nor that it does practice dentistry; on the contrary, the pleader distinctly avers that the business to be carried on by the defendant is quite dissimilar to his own. In fact, by all recognized standards, he himself is not in "business” at all. He practices a profession the success or failure of which is largely the result of his personal skill and reputation; whereas, the defendant does not, according to his complaint, practice that profession at all. Indeed, it cannot do so except under the limitations of section 203 of the Public Health Law already noticed, and it is at least a debatable question whether it could lawfully practice dentistry at all. It can legally, by his own showing, only manufacture and sell certain articles, the products of capital and labor, which are useful to the public generally and to dentists in particular. That there is a very clean-cut distinction between these two things must be evident from the mere statement of the proposition. That an analogous distinction exists between the practice of medicine and the “manufacture and sale of proprietory remedies which are entirely separate from and in no manner connected with the practice of medicine” is shown by the opinion of Judge Collin in the case of World’s D. M. Association v. Pierce, 203 N. Y. 419, at page 423, 96 N. E. 738, at page 740.
The fifth paragraph alleges that the office of the defendant is located at 539 Fulton street, Brooklyn. There is no allegation that the plaintiff ever had his office at that address. He states, on the contrary, that for 20 years his office has been at 491 Fulton street.
“That at said 539 Fulton street, borough of Brooklyn, the defendant herein has caused to be displayed therefrom, to the public, signs calculated to and which actually do mislead and deceive the public, in that said signs read, ‘Longenecker Brothers, Inc., Dentists.’
“That said display of said signs, as above set forth, has greatly damaged the plaintiff herein, in that patients seeking the plaintiff’s dental parlor at 491 Fulton street, borough of Brooklyn, have been misled and deceived thereby.”
In view of the dissimilarity not only in name but in the essential nature of the business of the defendant and the profession of the plaintiff, these allegations must be regarded as mere conclusions of the pleader, unless they be accompanied by some averments showing the precise, nature of the deception. It surely could not be contended that a patient seeking relief at the hands of a skillful dentist from a painful tooth would be deceived by the agents of a corporation into the purchase of tooth powders or other dental supplies and accept and pay for these articles in lieu of the treatment which he was seeking. As has already been pointed out, there is no allegation that the defendant corporation is practicing dentistry and by a similarity of names practicing a fraud on the plaintiff’s patients.
Taking the entire complaint together, it does not, I think, state facts sufficient either in law or in equity to support or constitute any cause of action, under established rules of pleading to which at least some slight attention should be paid.
Motion granted, with costs.