Back v. Bergstein

Appellate Division of the Supreme Court of New York

Back v. Bergstein

12 A.D.2d 636, 208 N.Y.S.2d 895, 1960 N.Y. App. Div. LEXIS 6490

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

DecidedDecember 14, 1960

StatusPublished

This text of 12 A.D.2d 636 (Back v. Bergstein) 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

Back v. Bergstein, 12 A.D.2d 636, 208 N.Y.S.2d 895, 1960 N.Y. App. Div. LEXIS 6490 (N.Y. Ct. App. 1960).

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Opinion

In an action for specific performance of an agreement to assign a patent (1st cause of action) and for a declaratory judgment or for reformation of an agreement and a general release (2d cause of action), plaintiff appeals: (1) from an order of the Supreme Court, Nassau County, dated March 29, 1960, granting defendant’s motion to dismiss the first cause of action pursuant to subdivision 6 of rule 107 of the Rules of Civil Practice, on the ground that the claim set forth in such cause of action has been released; and to dismiss the second cause of action pursuant to subdivisions 1 and 4 of rule 106 of the Rules of Civil Practice, on the ground that the complaint does not state facts sufficient to constitute a cause of action and on the ground that the court does not have jurisdiction of the subject of the action; and (2) from the judgment entered April 6, 1960, on said order, dismissing the complaint. Judgment and order reversed, with $10 costs and disbursements, and motion denied. On the record presented, it may not be determined summarily that the claim asserted in the first cause of action has been released. As to the second cause of action, in our opinion it is sufficient as a pleading, and the court has jurisdiction of the subject of the action. Nolan, P. J., Beldock, Ughetta, Pette and Brennan, JJ., concur.

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In an action for specific performance of an agreement to assign a patent (1st cause of action) and for a declaratory judgment or for reformation of an agreement and a general release (2d cause of action), plaintiff appeals: (1) from an order of the Supreme Court, Nassau County, dated March 29, 1960, granting defendant’s motion to dismiss the first cause of action pursuant to subdivision 6 of rule 107 of the Rules of Civil Practice, on the ground that the claim set forth in such cause of action has been released; and to dismiss the second cause of action pursuant to subdivisions 1 and 4 of rule 106 of the Rules of Civil Practice, on the ground that the complaint does not state facts sufficient to constitute a cause of action and on the ground that the court does not have jurisdiction of the subject of the action; and (2) from the judgment entered April 6, 1960, on said order, dismissing the complaint. Judgment and order reversed, with $10 costs and disbursements, and motion denied. On the record presented, it may not be determined summarily that the claim asserted in the first cause of action has been released. As to the second cause of action, in our opinion it is sufficient as a pleading, and the court has jurisdiction of the subject of the action. Nolan, P. J., Beldock, Ughetta, Pette and Brennan, JJ., concur.

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Bluebook (online)

12 A.D.2d 636, 208 N.Y.S.2d 895, 1960 N.Y. App. Div. LEXIS 6490, Counsel Stack Legal Research, https://law.counselstack.com/opinion/back-v-bergstein-nyappdiv-1960.