Ross Industries Corp. v. Bentley — 268 A.D. 897

Majority

p. 897

(November 17, 1944.)

Ross Industries Corporation et al., Suing on Behalf of Themselves and All Other Stockholders of Auditorium Conditioning Corporation, Similarly Situated, Appellants-Respondents, v. James A. Bentley et al., Defendants, and William S. Shipley et al., Defendants, Respondents-Appellants.

The order entered April 13, 1944, insofar as appealed from by the plaintiffs should be modified to the extent of reversing and denying the motion as to the matters set forth in subdivisions 1, 2, 3, 4 and 6 of the second decretal paragraph of the order, and as so modified affirmed, with ten dollars costs and disbursements to the plaintiffs.

The granting of summary judgment on the basis of an accord and satisfaction was improper since the affidavits raised issues of fact as to performance on the part of defendant York Ice Machinery Corporation. The cause of action alleged in paragraph 57 did not accrue at the time the royalty reductions were voted but rather upon York’s failure to pay. Paragraphs 63 and 70 and the fourth prayer for relief are not based upon rights arising out of patent laws. Those allegations of the complaint, when considered with the other allegations, tend to show the breach by carrier and York of their contract obligations which plaintiffs are-seeking to enforce. Those portions of the complaint dismissed at Special Term for insufficiency serve the function of stating the facts leading up to the acts complained of and contain historical allegations necessary for a full development of the case for the trial court.

On the defendants’ appeal the order should be affirmed.

The order, entered March 2, 1944, denying plaintiffs’ motion to modify the demand for a bill of particulars, insofar as appealed from, should be modified to the extent of eliminating from the demand for a bill of particulars items 1, 2, 4, 6, 7, 25, 26, 27, 30, 31 and 32 and as so modified, affirmed, with ten dollars costs and disbursements to the" plaintiffs-appellants. The bill to be served within twenty days after completion of the examination of defendants before trial.

p. 898

Martin, P. J., Townley Glennon Unterinyer and Dore JJ., concur.

Order entered April 13, 1944, so far as appealed from, unanimously modified as stated in the opinion, and as so modified affirmed, with ten dollars costs and disbursements to the plaintiffs. Order entered March 2, 1944, so far as appealed from, unanimously modified as stated in the opinion, and as so modified affirmed, with ten dollars costs and disbursements to the plaintiffs-appellants. Settle orders on notice.