D. W. Franchot & Co. v. Hopkins

11 A.D.2d 621, 200 N.Y.S.2d 198, 1960 N.Y. App. Div. LEXIS 10205

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 5, 1960
• Status: Published

Opinion

Order unanimously reversed, with $25 costs and disbursements to the plaintiffs and defendants’ motion denied, without costs. Memorandum: The defendants’ motion is for an order dismissing the complaint. The order appealed from did not grant the motion to dismiss the entire complaint, nor did it dismiss either of the two causes of action contained in it. It ordered that the first and second causes of action be dismissed, insofar as they respectively relate to certain leases and that the complaint be deemed amended by striking all references to such leases from the respective causes of action. Special Term erred in striking such allegations from the complaint and letting the remainder of the complaint stand. Such relief was not invoked by the notice of motion and could not properly be granted on a motion to dismiss the complaint. (Keller v. Levy, 265 App. Div. 723; Matter of Siemer v. Village Bd. of the Vil. of Orchard Park, 286 App. Div. 135.) The complaint substantially sets forth the essentials necessary for relief under article 15 of the Real Property Law (Real Property Law, § 502; Niagara Falls Power Co. v. White, 292 N. Y. 472, 479, 480; Gifford v. Whittemore, 4 A D 2d 379) and for a declaration of the rights of the parties (Civ. Prac. Act, § 473; Rules Civ. Prac., rules 210-214). The motion should, therefore, have been denied. (Cross appeals from order of Steuben Special Term, granting in part defendants’ motion to dismiss the complaint and denying the motion otherwise.) Present — Williams, P. J., Bastow, Goldman, Halpem and Henry, JJ.