Gallie Corp. v. Bankers Commercial Corp.

Appellate Division of the Supreme Court of New York

Gallie Corp. v. Bankers Commercial Corp.

6 A.D.2d 674, 173 N.Y.S.2d 648, 1958 N.Y. App. Div. LEXIS 5944

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

DecidedMay 13, 1958

StatusPublished

This text of 6 A.D.2d 674 (Gallie Corp. v. Bankers Commercial 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

Gallie Corp. v. Bankers Commercial Corp., 6 A.D.2d 674, 173 N.Y.S.2d 648, 1958 N.Y. App. Div. LEXIS 5944 (N.Y. Ct. App. 1958).

Pincite

Opinion

The order dated June 15, 1956, should be modified on the law to the extent of deleting therefrom leave to replead as to the second, third and fourth causes of action, and dismissing the fifth and sixth causes of action, with leave to replead only as to the sixth cause of action. We are of the oninion that the second and fourth causes of action are not avail[675]*675able to a simple contract creditor (Shilton v. Codington, 185 N. Y. 80, 86); that the second to fifth, inclusive, causes of action are not, on the facts alleged, available to the plaintiff, particularly in the light of the allegation contained in paragraph “ 27 ” of the complaint that an involuntary petition in bankruptcy was filed against Basile Shipping Company, Inc. The sixth cause of action fails to allege ultimate facts to support a cause of action in fraud or prima facie tort. The said order is otherwise affirmed, with $20 costs and disbursements to the defendant-appellant-respondent. The order of November 29, 1956, denying reargument, is not appealable and the appeal therefrom is accordingly dismissed, with $20 costs and disbursements to plaintiff-respondent-appellant. (Kelly v. Vania Cab Corp., 1 A D 2d 803.) Settle order. Concur — Breitel, J. P., Rabin, McNally and Stevens, JJ.

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The order dated June 15, 1956, should be modified on the law to the extent of deleting therefrom leave to replead as to the second, third and fourth causes of action, and dismissing the fifth and sixth causes of action, with leave to replead only as to the sixth cause of action. We are of the oninion that the second and fourth causes of action are not avail[675]*675able to a simple contract creditor (Shilton v. Codington, 185 N. Y. 80, 86); that the second to fifth, inclusive, causes of action are not, on the facts alleged, available to the plaintiff, particularly in the light of the allegation contained in paragraph “ 27 ” of the complaint that an involuntary petition in bankruptcy was filed against Basile Shipping Company, Inc. The sixth cause of action fails to allege ultimate facts to support a cause of action in fraud or prima facie tort. The said order is otherwise affirmed, with $20 costs and disbursements to the defendant-appellant-respondent. The order of November 29, 1956, denying reargument, is not appealable and the appeal therefrom is accordingly dismissed, with $20 costs and disbursements to plaintiff-respondent-appellant. (Kelly v. Vania Cab Corp., 1 A D 2d 803.) Settle order. Concur — Breitel, J. P., Rabin, McNally and Stevens, JJ.

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Bluebook (online)

6 A.D.2d 674, 173 N.Y.S.2d 648, 1958 N.Y. App. Div. LEXIS 5944, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gallie-corp-v-bankers-commercial-corp-nyappdiv-1958.

Opinion

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