Emden v. Martin Automatic Fishing Reel Co.

6 Misc. 2d 348, 166 N.Y.S.2d 856, 1957 N.Y. Misc. LEXIS 2818

• Court: New York County Courts
• Decided: June 24, 1957
• Status: Published

Opinion

Edmund A. McCarthy, J.

The plaintiff moves to strike from the amended answer under rule 103 of the Civil Practice Act, certain paragraphs numbered six, seven, eight, and nine.

The defendant presents a cross motion for summary judgment, asking for a dismissal of the complaint of the plaintiff.

The facts are set out in the pleadings, and examination before trial and moving papers, so far as the record in this case now shows.

The complaint alleges specific services, which are denied upon information and belief in the amended answer, so an issue of fact is presented to be heard by a jury.

Accordingly, the motion to dismiss the complaint is denied.

Section 10.2 (Y) of Treasury Department Circular Number 230, governs an “enrolled person” practicing before the Treasury Department.

Plaintiff is not such an “ enrolled person.”

Nothing in the record shows that the plaintiff represented the defendant before a Treasury Department hearing.

Reference is made to conferences with a “ Treasury Agent ” or field representative. Surely this does not require “ enrollment.”

The conclusory allegations of paragraphs eight and nine of the amended answer are not borne out by the record, as a matter of law.

This case is distinguishable from Matter of New York County Lawyers Assn. (Bercu) (273 App. Div. 524, affd. 299 N. Y. 728). Here the plaintiff was employed by the defendant, to post their bookkeeping books, and in 1953, rendered accounting of services on the books of the defendant for some 11 months. And in 1954, from the rendition of these services in accounting, a refund of some tax money resulted.

The application of legal knowledge in such work, however, is only incidental to the accounting functions. (Matter of New York County Lawyers Assn. [Bercu], 273 App. Div. 524, 532.)

Accordingly, the defendant’s cross motion is hereby denied and the plaintiff’s motion is granted, with $10 motion costs to abide the event.

Order accordingly.