253 A.D. 650 | N.Y. App. Div. | 1938
Although we are of the opinion that the action cannot be maintained by the plaintiffs in a representative capacity, the motion to dismiss the complaint as not stating facts sufficient to constitute a cause of action must be denied for the reason that the plaintiffs have stated a cause of action “ in their own behalf.” The Court of Appeals so held in Brenner v. Title Guarantee & Trust Co. (276 N. Y. 230), where the first question certified was answered in the affirmative.
The question, whether the action is maintainable in equity rather than at law, cannot be decided on this motion to dismiss the complaint. (Abbey v. Wheeler, 170 N. Y. 122; Mitchell v. Thorne, 134 id. 536; Superior Brassiere Company, Inc., v. Zimetbaum, 214 App. Div. 525; Kraemer v. World Wide Trading Co., Inc., 195 id. 305; Gosselin Corp. v. Mario Tapparelli fu Pietro, Inc., 191 id. 580; affd., 229 N. Y. 596; Gillespie v. Montgomery, 93 App. Div. 403; Hotel Register Co. v. Osborne, 84 id. 307.)
The order should be affirmed, with twenty dollars costs and disbursements, with leave to the defendants-appellants to answer within twenty days after service of order with notice of entry, upon payment of said costs.
Present — Martin, P. J., Untermyer, Dore, Cohn and Callahan, JJ.
Order unanimously affirmed, with twenty dollars costs and disbursements, with leave to the defendants-appellants to answer within twenty days after service of order upon payment of said costs.