Funfgeld v. Kogon

277 A.D.2d 785

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 15, 1950
• Status: Published

Opinion

In an action by a subcontractor against a general contractor, upon an express contract and on quantum meruit, for work, labor and services performed and materials furnished, plaintiff appeals from an order dated May 9, 1949, insofar as such order grants a motion by defendants to strike out paragraph “ Fifteen ” of plaintiff’s amended complaint, and from an order dated August 23, 1949, which denies, without prejudice to renewal, a motion made by plaintiff to amend paragraph “Eighteen” of plaintiff’s amended complaint. Order of May 9, 1949, insofar as appealed from, reversed on the law» with $10 costs and disbursements, and motion, insofar as it related to paragraph “ Fifteen ” of plaintiff’s amended complaint, denied, without costs. The allegations of paragraph “ Fifteen ” are neither irrelevant, redundant, repetitious or unnecessary, nor do they tend to prejudice, embarrass or delay the trial of the action. On the contrary, plaintiff was required to plead the facts alleged, in the manner in which they were pleaded, or in general terms (Rules Civ. Prae., rule 92), in order to state a cause of action. (Cf. Weeks V. O’Brien, 141 N. T. 199.) Appeal from order of August 23, 1949, dismissed, without costs. The order is not appealable. (Kalmanash v. Weinstein, 271 App. Div. 788; Weinrib v. American Binder Go., 270 App. Div. 914.) Nolan, P. J., Carswell, Johnston, Adel and MaeCrate, JJ., concur.