Anchor Concrete Products, Inc. v. Roetzer

283 A.D. 1010, 130 N.Y.S.2d 925, 1954 N.Y. App. Div. LEXIS 6109

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 20, 1954
• Status: Published

Opinion

Order affirmed, with $10 costs and disbursements. All concur, except Wheeler and Van Duser, JJ., who dissent and vote for reversal and for granting the motion in the following memorandum: We think the complaint intermingles three causes of action: one for damages for breach of contract, another to set aside a fraudulent conveyance, and a third to enforce the trust fund provisions of section 13 of the Lien Law. Since the proof under the various causes of action is “ unrelated and would necessarily differ and concern different parties,” defendants’ motion to separately state and number should be granted. (Lyon v. Israel, 249 App. Div. 787.) American Surety Go. v. Connor (251 N. Y. 1, 7) and State of Bio de Janeiro v. Bollins é Sons (299 N. Y. 363, 367) merely hold that article 10 of the Debtor and Creditor Law abrogates “ the ancient rule whereby a judgment and a lien were essential preliminaries to equitable relief against a fraudulent conveyance.” These eases do not hold that only a single cause of action is presented. (Appeal from an order denying defendants’ motion to compel plaintiff to separately state and number its causes of action.) Present — Vaughan, J. P., Kimball, Piper, Wheeler and Van Duser, JJ.