Warn v. Warn

Order modified in accordance with the memorandum and as modified affirmed, with $10 costs and disbursements to each of the respondents filing briefs. Memorandum: This is the second time that Special Term has determined the complaint to be fatally defective. The first order properly dismissed the original complaint for failure to allege that the chattel mortgages were in default at the time of sale, or that the chattels were in possession of the defendants at the time of demand, or, if default occurred after sale, that a demand was made upon defendants who refused to return the chattels or respond in damages, or that plaintiff did not consent to the removal of the chattels. The memorandum of the court and all the pleadings on the first motions were given to this court upon the argument of this appeal. The amended complaint is almost identical with the original and the new material in no way corrected the defects clearly pointed out to the appellant in the court’s memorandum accompanying the order of dismissal. The motions to dismiss were, therefore, properly granted, but inasmuch as appellant’s attorney stated upon the argument that facts existed from which he could plead a good cause of action appellant is granted leave to serve a second amended complaint within 20 days after service of a eopy of this order upon its attorney. All concur. (Appeal from an order of Steuben Special Term, granting defendants’ motions to dismiss the amended complaint in an action to recover from all defendants the amount due on three chattel mortgages on cows.)

Present—McCurn, P. J., Kimball, Bastow, Goldman and Halpern, JJ.

Case Details

Case Name: Warn v. Warn

Court Name: Appellate Division of the Supreme Court of the State of New York

Date Published: Mar 5, 1958

Citation: 5 A.D.2d 952

Court Abbreviation: N.Y. App. Div.