Matchette v. Statler — 234 A.D. 306

Majority

p. 306

Franklin J. Matchette, Appellant, Respondent, v. Alice S. Statler, Defendant, Impleaded with Frank A. McKowne and Another, as Executors of Ellsworth M. Statler, Deceased, Respondents, Appellants.

First Department,

January 29, 1932.

p. 307

Frank P. Walsh of counsel [William P. McCool with him on the brief; Frank P. Walsh, attorney], for the plaintiff.

James McCormick Mitchell of counsel [William I. Morey with him on the brief; Kenefick, Cooke, Mitchell, Bass & Letchworth and Sullivan & Cromwell, attorneys], for the defendants.

The first cause of action considered as a pleading sets forth a breach of a primary obligation of the defendants’ testator to see to it that Hotels Statler Company, Inc., would faithfully perform its written contract with plaintiff. In the form pleaded, the Statute of Frauds has no application.

The second cause of action sounds in tort and alleges that defendants’ testator maliciously interfered in the performance by Hotels Statler Company, Inc., of its written contract with plaintiff and induced a breach of the contract by the Hotels Statler Company, Inc. In form the second cause of action is also sufficiently pleaded. (Lumley v. Gye, 2 El. & Bl. 216; Hornstein v. Podwitz, 254 N. Y. 443 .)

Accordingly, the order should be modified by denying the motion to dismiss the first cause of action, and as modified affirmed, with ten dollars costs and disbursements to plaintiff.

Present — Finch, P. J., Merrell, O’Malley, Sherman and Townley, JJ.

Order so far as appealed from modified by denying motion to dismiss the first cause of action, and as so modified affirmed, with ten dollars costs and disbursements to the plaintiff.

Cases cited

Hornstein v. Podwitz 254 N. Y. 443 N.Y. 1930-11-18 p. 307