Gutta Percha & Rubber Manufacturing Co. v. Holman

Majority

p. 583

The Gutta Percha and Rubber Manufacturing Company, Respondent, v. Charles J. Holman, as Treasurer of the National Board of Fire Underwriters, Appellant.

Headnote

Quita Percha & Rubber Mfg. Co. v. Holman, 154 App. Div. 891 , affirmed.

(Argued April 17, 1913;

decided April 29, 1913.)

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial depart

p. 584

ment, entered December 2'T, 1912, which affirmed an order of Special Term granting a motion by plaintiff for judgment in its favor upon the pleadings in an action to restrain the defendant from interfering with the plaintiff’s business or with the sale of its products.

The following question was certified: “Does the complaint state facts sufficient to constitute a cause of action ? ”

Frederick T. Case for appellant.

Franklin Pierce and William Langdon for respondent.

While there is much in the complaint that affords no ground for cause of action against the defendant, still there are other allegations therein that would tend to establish not Only unlawful conduct on his part, but acts done that become unlawful through the motives and purposes for which they were committed; and also while much of the prayer for relief seeks to restrain acts which we think were in the power of the defendant to do without being answerable in law therefor, yet the effect of the prayer for relief, even though it seeks results that cannot be granted, does not prevent the plaintiff from recovering such relief as the proof in its entirety will show it to be entitled to.

The order should be affirmed, with costs, and question certified answered in the affirmative.

Gtjllen, Oh. J., Gray, Werner, Hiscock, Collin and Ouddeback, JJ., concur; Miller, J., not sitting.

Order affirmed.