Imperatrice v. Imperatrice — 298 N.Y. 549

Majority

p. 549

Anna Imperatrice, Respondent, v. Antonio Imperatrice et al., Appellants, et al., Defendants.

Argued June 1, 1948;

decided July 16, 1948.

George Mehlman for appellants.

Irving L. Young and Alfred M. Schaffer for respondent.

Since the first cause of action, sounding in equity, is valid and since defendants’ motion under rule 106 of the Rules of Civil Practice seeks dismissal of the entire complaint, the motion was properly denied. (See Advance Music Corp. v. American Tobacco Co., 296 N. Y. 79 , 84; Eidlitz v. Fischbach & Moore, Inc., 239 App. Div. 483 , 486; Fusco v. Brooks, 263 App. Div. 845 .) We neither consider nor pass upon the sufficiency of the other causes of action,' nor the nature of the judgment to which plaintiff may be entitled.

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

LoughraN, Ch. J., Lewis, DesmoNd, Thacher, Dye and Fuld, JJ., concur; CoNway, J., taking no part.

Order affirmed, etc.

Cases cited

Advance Music Corp. v. American Tobacco Co. 296 N. Y. 79 N.Y. 1946-11-21 at 84 p. 549