Di Bernardo v. Stewart Warner Corp.

Appellate Division of the Supreme Court of New York

Di Bernardo v. Stewart Warner Corp.

255 A.D. 1004, 8 N.Y.S.2d 310, 1938 N.Y. App. Div. LEXIS 6238

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

DecidedDecember 23, 1938

StatusPublished

This text of 255 A.D. 1004 (Di Bernardo v. Stewart Warner Corp.) 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

Di Bernardo v. Stewart Warner Corp., 255 A.D. 1004, 8 N.Y.S.2d 310, 1938 N.Y. App. Div. LEXIS 6238 (N.Y. Ct. App. 1938).

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Opinion

In an action to recover damages for alleged malicious prosecution, order denying appellant’s motion to dismiss the amended complaint on the ground that it does not state facts sufficient to constitute a cause of action reversed on the law, with ten dollars costs and disbursements, and motion granted, without costs. Plaintiffs may serve a new complaint "within ten days from the entry of the order hereon if they be so advised. Merely to allege that the appellant testified before the grand jury is insufficient. The complaint should show that such testimony was false or that information "within the knowledge of the appellant was withheld and that such false testimony, or the withholding of such information, was the cause of the criminal proceeding. The complaint in its present form does not warrant the inference that the appellant’s testimony caused the grand jury to direct the district attorney to file the information in the Court of Special Sessions. Lazansky, P. J., Adel, Taylor and Close, JJ., concur; Davis, J., dissents and votes to affirm.

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In an action to recover damages for alleged malicious prosecution, order denying appellant’s motion to dismiss the amended complaint on the ground that it does not state facts sufficient to constitute a cause of action reversed on the law, with ten dollars costs and disbursements, and motion granted, without costs. Plaintiffs may serve a new complaint "within ten days from the entry of the order hereon if they be so advised. Merely to allege that the appellant testified before the grand jury is insufficient. The complaint should show that such testimony was false or that information "within the knowledge of the appellant was withheld and that such false testimony, or the withholding of such information, was the cause of the criminal proceeding. The complaint in its present form does not warrant the inference that the appellant’s testimony caused the grand jury to direct the district attorney to file the information in the Court of Special Sessions. Lazansky, P. J., Adel, Taylor and Close, JJ., concur; Davis, J., dissents and votes to affirm.

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Bluebook (online)

255 A.D. 1004, 8 N.Y.S.2d 310, 1938 N.Y. App. Div. LEXIS 6238, Counsel Stack Legal Research, https://law.counselstack.com/opinion/di-bernardo-v-stewart-warner-corp-nyappdiv-1938.