Mooney v. Pinover

224 A.D. 863 | N.Y. App. Div. | 1928

Order denying motion to dismiss complaint for insufficiency, and upon the ground of a misjoinder of parties, or, in the alternative, to make the complaint more definite and certain, reversed upon the law, with ten dollars costs and disbursements, and motion to dismiss complaint granted, with ten dollars costs, with leave to plaintiffs to plead over within twenty days upon payment of said costs. We reach this determination upon the ground that the complaint is vague and uncertain with regard to the rights of the parties joined, both plaintiffs and defendants; and in so far as a cause of action on contract is attempted to be stated, it seems that there are intermingled allegations tending to indicate a cause of action in tort. While this latter conclusion would not necessarily require a dismissal of the complaint, it does affect the right of the individual plaintiff to sue, as well as the right to obtain a judgment against the individual defendants. Lazansky, P. J., Rich, Kapper, Hagarty and Carswell, JJ., concur.