Cagliardi v. Hoffman

246 A.D. 753

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1935
• Status: Published

Opinion

Order denying defendant’s motion to dismiss the complaint reversed on the law, with ten dollars costs and disbursements, and motion granted, with leave to plaintiff to plead over within ten days. The letter of May 14, 1930, on its face is not a violation of section 270 of the Penal Law. If plaintiff pleads and presents facts which would show that the transaction between the parties was in violation of section 270 of the Penal Law, then the general release given in connection with the disposition of the $13,000 would not be binding. The parties are not in pari delicto, and the general release of the illegal agreement would not be binding on plaintiff. In view of the foregoing, the appeal from the order striking certain allegations from the complaint is dismissed, without costs. If plaintiff pleads anew, section 241 of the Civil Practice Act will remind her that the complaint should be a concise statement of the material facts, but not of the evidence by which these facts are sought to be proved. Lazansky, P. J., Young, Hagarty, Tompkins and Davis, JJ., concur.