259 A.D. 1027 | N.Y. App. Div. | 1940
Action by a judgment creditor of defendant Robert Philips to set aside certain transactions allegedly in fraud of that defendant’s creditors. Order dated November 6, 1939, denying appellant’s motion for judgment on the pleadings, dismissing the complaint for failure to state a cause of action, and to vacate or modify the notice of examination before trial, modified so as to grant the motion to strike out the “ First,” “ Third ” and “ Fourth ” causes of action only; and further modified so as to direct that the examination before trial be had only upon subjects of inquiry relating to the “ Second ” cause of action, to wit, items 3, 6 and 7. As thus modified the order is affirmed, with ten dollars costs and disbursements to the appellant, the examination to proceed on five days’ notice. Order dated March 13, 1940, denying appellant’s motion for judgment on the pleadings under rule 112, Rules of Civil Practice, and for summary judgment under rule 113, modified so as to grant the motion for judgment on the pleadings dismissing the complaint against appellant as to the “ First,” “ Third ” and “ Fourth ” causes of action only. As thus modified, the order is affirmed, without costs. Order dated March 13, 1940, denying, on condition, plaintiff’s motion to preclude appellant from offering testimony on the trial with respect to items contained in its affirmative defense, modified so that it shall apply to the “ Second ” cause of action only. As thus modified, the order is affirmed, without costs. The time of appellant to comply with the condition in the order as to service of the verified bill of particulars is extended until ten days from the entry of the order hereon. In our opinion (a) in none of the alleged causes of action “ Fust,” “ Third ” and “ Fourth ” are facts stated sufficient to constitute a cause of action against appellant; and (b) in the “ Second ” cause of action facts are stated sufficient for that purpose. These rulings necessitate our determination in other respects as above stated. Lazansky, P. J., Hagarty, Carswell, Adel and Taylor, JJ., concur.