Arista Oil Products Corp. v. Dutch American Mercantile Corp.

Appellate Division of the Supreme Court of New York

Arista Oil Products Corp. v. Dutch American Mercantile Corp.

1 A.D.2d 877, 149 N.Y.S.2d 532, 1956 N.Y. App. Div. LEXIS 6027

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 20, 1956

StatusPublished

This text of 1 A.D.2d 877 (Arista Oil Products Corp. v. Dutch American Mercantile Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Arista Oil Products Corp. v. Dutch American Mercantile Corp., 1 A.D.2d 877, 149 N.Y.S.2d 532, 1956 N.Y. App. Div. LEXIS 6027 (N.Y. Ct. App. 1956).

Pincite

Opinion

Plaintiff appeals from that part of Special Term’s order which denied its motion to dismiss the separate defenses. We do not pass upon those defenses inasmuch as plaintiff’s own pleading, if insufficient, as it appears to be, would require a dismissal of its complaint (Cavanagh v. Hutcheson, 140 Misc. 178, affd. 236 App. Div. 794; Baxter v. McDonnell, 154 N. Y. 432). The complaint does not allege that defendant failed to deliver the kroner. The eonclusory allegation that it failed to deliver “in accordance with its agreement” may be taken to mean that the kroner were in fact delivered but that the delivery did not comply with the terms of the contract. However, no facts are pleaded to support such a claim. The complaint is clearly insufficient and on the motion addressed to the defenses should therefore have been dismissed. It is appropriate to note, however, in the interest of saving further pleading motions and appeals, that the defenses are not pleaded with sufficient supporting facts. Order, so far as appealed from, unanimously modified so as to dismiss the complaint with leave to plead over and, as so modified, affirmed, without costs. Settle order on notice. Concur — Peek, P. J., Breitel, Rabin, Frank and Bergan, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

Plaintiff appeals from that part of Special Term’s order which denied its motion to dismiss the separate defenses. We do not pass upon those defenses inasmuch as plaintiff’s own pleading, if insufficient, as it appears to be, would require a dismissal of its complaint (Cavanagh v. Hutcheson, 140 Misc. 178, affd. 236 App. Div. 794; Baxter v. McDonnell, 154 N. Y. 432). The complaint does not allege that defendant failed to deliver the kroner. The eonclusory allegation that it failed to deliver “in accordance with its agreement” may be taken to mean that the kroner were in fact delivered but that the delivery did not comply with the terms of the contract. However, no facts are pleaded to support such a claim. The complaint is clearly insufficient and on the motion addressed to the defenses should therefore have been dismissed. It is appropriate to note, however, in the interest of saving further pleading motions and appeals, that the defenses are not pleaded with sufficient supporting facts. Order, so far as appealed from, unanimously modified so as to dismiss the complaint with leave to plead over and, as so modified, affirmed, without costs. Settle order on notice. Concur — Peek, P. J., Breitel, Rabin, Frank and Bergan, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

1 A.D.2d 877, 149 N.Y.S.2d 532, 1956 N.Y. App. Div. LEXIS 6027, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arista-oil-products-corp-v-dutch-american-mercantile-corp-nyappdiv-1956.

Opinion

Related

Cite This Page — Counsel Stack