Carnemolla v. Society of the Citizens of Pozzallo, Inc.

241 A.D. 765

Opinion

Order dismissing complaint as insufficient in law affirmed, with ten dollars costs and disbursements. The complaint, when most liberally construed, alleges that the defendant procured an order of consolidation of the two societies on fraudulent proof to the court of compliance with the requirements of the statute respecting such, a consolidation. This alleged fraud, therefore, related to an issue to be determined in the consolidation proceeding. The redress of such a type of fraud may only be had in the proceeding in which the alleged fraud was claimed to have been perpetrated. The remedy of the plaintiff, therefore, was to so move, and in the event relief was denied and a meritorious basis existed therefor, an appeal should have been prosecuted from the order of denial. (Crouse v. McVickar, 207 N. Y. 213; Mayor, etc., of N. Y. v. Brady, 115 id. 599; Ward v. Town of South-field, 102 id. 287.) Lazansky, P. J., Young, Hagarty, Carswell and Davis, JJ., concur.