Cosmos Textile Corp. v. J. H. Erstein & Bro.

Appellate Division of the Supreme Court of New York

Cosmos Textile Corp. v. J. H. Erstein & Bro.

243 A.D. 296, 276 N.Y.S. 1007, 1935 N.Y. App. Div. LEXIS 7060

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

DecidedFebruary 1, 1935

StatusPublished

This text of 243 A.D. 296 (Cosmos Textile Corp. v. J. H. Erstein & Bro.) 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

Cosmos Textile Corp. v. J. H. Erstein & Bro., 243 A.D. 296, 276 N.Y.S. 1007, 1935 N.Y. App. Div. LEXIS 7060 (N.Y. Ct. App. 1935).

Pincite

Opinion

Per Curiam.

Facts sufficient to constitute a cause of action for an accounting are pleaded. We have determined, therefore, that the court at Special Term properly denied the motion to dismiss.

The prayer for relief would seem to indicate that the plaintiff seeks to reform the written agreement entered into between the parties. While plaintiff has stated in its brief that the remedy is only incidental, it must be borne in mind that, in affirming, the court at this time is not holding that the allegations upon which it relies for a reformation are properly pleaded, or that such relief is necessary to enable the trial court to construe the agreement in the manner desired by the plaintiff.

The order appealed from should be affirmed, with twenty dollars costs and disbursements to the respondent, with leave to the defendant to answer within twenty days from service of order upon payment of said costs.

Present — Martin, P. J., Merrell, O’Malley, Glennon and Untermyer, JJ.

Order affirmed, with twenty dollars costs and disbursements, with leave to the defendant to answer within twenty days from service of order upon payment of said costs.

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Per Curiam.

Facts sufficient to constitute a cause of action for an accounting are pleaded. We have determined, therefore, that the court at Special Term properly denied the motion to dismiss.

The prayer for relief would seem to indicate that the plaintiff seeks to reform the written agreement entered into between the parties. While plaintiff has stated in its brief that the remedy is only incidental, it must be borne in mind that, in affirming, the court at this time is not holding that the allegations upon which it relies for a reformation are properly pleaded, or that such relief is necessary to enable the trial court to construe the agreement in the manner desired by the plaintiff.

The order appealed from should be affirmed, with twenty dollars costs and disbursements to the respondent, with leave to the defendant to answer within twenty days from service of order upon payment of said costs.

Present — Martin, P. J., Merrell, O’Malley, Glennon and Untermyer, JJ.

Order affirmed, with twenty dollars costs and disbursements, with leave to the defendant to answer within twenty days from service of order upon payment of said costs.

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Bluebook (online)

243 A.D. 296, 276 N.Y.S. 1007, 1935 N.Y. App. Div. LEXIS 7060, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cosmos-textile-corp-v-j-h-erstein-bro-nyappdiv-1935.