Cooke v. Dodge

254 A.D. 808, 4 N.Y.S.2d 768, 1938 N.Y. App. Div. LEXIS 7696

Opinion

-— Order modified by granting leave to plead over and as modified affirmed, with ten dollars costs and disbursements to the respondents. Memorandum: The complaint, on its face, attempted to allege a cause of action in equity. It was so treated at the Special Term and we must so treat it on this appeal. We are of the opinion that no error was committed in granting the relief embodied in the order appealed from. On the argument of the case, however, counsel for the plaintiff-appellant made the statement that events occurring since the granting of the order have obviated the equity features and he suggested that the complaint be treated as one for defamation of character, a cause of action at common law. We cannot treat this complaint otherwise than it was treated at the Special Term but, in view of the counsel’s statement, we have determined to modify the order by granting the plaintiff leave to file an amended complaint setting forth the facts on which the plaintiff bases his claim to damages. Of course, we are not passing upon the sufficiency of the allegations contained in the present complaint as a basis for damages for defamation of character, or as to any question of privilege which may be involved. All concur. (The order denies plaintiff’s motion for a temporary injunction and grants defendants’ motion to dismiss the complaint, in an action for damages for conspiracy.) Present — Sears, P. J., Lewis, Cunningham, Taylor and Dowling, JJ. [164 Mise. 78.]