220 A.D. 812 | N.Y. App. Div. | 1927
The complaint states three good causes of action against the defendant DeMuth, but fails adequately to state any cause of action against the other defendants, because plaintiff has not alleged that the other defendants had knowledge of DeMuth’s improper conduct. Moreover, it fails to state the facts from which the legal conclusion of a conspiracy may be inferred. The order granting the motion to dismiss the complaint as to the defendant DeMuth should be reversed, with ten dollars costs and disbursements to the appellant, and the motion denied, with ten dollars costs, with leave to said defendant to answer within twenty days from service of order upon payment of said costs. The order granting motion to dismiss the complaint as to the other defendants should be modified so as to grant leave to serve an amended complaint, and as so modified affirmed, without costs of this appeal, and with leave to plaintiff to serve an amended complaint within twenty days from service of order upon payment of ten dollars costs awarded to the defendants Behrend, Gehrt and Hansa Color Co., Inc., by the order appealed from. Present —■ Dowling, P. J., Merrell, Finch, McAvoy and Proskauer, JJ. First order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, with leave to the defendant Adolf F. DeMuth to answer within twenty days from service of order upon payment of said costs. Second order modified so as to grant leave to serve an amended complaint, and as so modified affirmed, without costs of this appeal, and with leave to plaintiff to serve an amended complaint within twenty days from service of order upon payment of ten dollars costs awarded to the defendants Henry Behrend, Rudy Gehrt and Hansa Color Co., Inc., by the order appealed from.