Fusco v. Brooks

263 A.D. 845, 31 N.Y.S.2d 687, 1941 N.Y. App. Div. LEXIS 5239

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 22, 1941
• Status: Published

Opinion

Appeal from so much of an order as dismisses plaintiffs second cause of action as against defendant The Citizens Bank of White Plains, on the ground of insufficiency. Order, in so far as appealed from, modified on the law so as to provide that the motion be denied as to the second cause of action, and by striking out the last decretal paragraph of the order. As so modified, the order is affirmed, with ten dollars costs and disbursements to the appellant. Respondent’s time to answer is extended until ten days from the entry of the order hereon. The complaint contains three alleged causes of action. The notice of motion was addressed to the complaint generally. The first cause was held to be good. The third cause does not affect the defendant respondent. The sufficiency of any one cause of action will defeat a general notice of motion addressed to the sufficiency of a complaint containing more than one cause of action. (Eidlitz v. Fischbach & Moore, Inc., 239 App. Div. 483; Cochran v. Mount Vernon Trust Co., 245 id. 724.) Lazansky, P. J., Hagarty, Carswell, Taylor and Close, JJ., concur.