Grainger v. Shea Enterprises, Inc.

282 A.D. 730, 122 N.Y.S.2d 275, 1953 N.Y. App. Div. LEXIS 4817

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 22, 1953
• Status: Published

Opinion

In an action at law for damages for breach of contract, the defendants appeal from orders which (1) denied their motion to dismiss the complaint for insufficiency, for summary judgment, to dismiss the complaint on the ground that there are two other prior actions pending between the same parties for the same cause, or, in the alternative to stay the trial of the action until there is a final determination of two accounting proceedings instituted prior to this action in the Surrogate’s Court, Bronx County, and (2) denied their motion to dismiss the amended complaint for insufficiency. Orders affirmed, with one bill of $10 costs and disbursements. The Supreme Court has jurisdiction of the cause of action pleaded. The affidavits reveal questions of fact which require a trial. In view of the refusal of the Surrogate of Bronx County to consent to the transfer of the action to his court, it was not an abuse of discretion to deny a stay of the trial in the Supreme Court. It should be observed, however, that the option agreement relied upon by the plaintiff specifically states that it does not alter or change existing agreements. Therefore, subdivision 2 of section 33 of the Personal Property Law is not applicable and the plaintiff must establish that there was consideration for the promise by defendants to pay him $30,000. The affirmance of the orders does not stay, the Surrogate from settling the final account of the plaintiff as executor and trustee and resolving the questions raised by the objections. Neither are the defendants stayed from again seeking the consent of the Surrogate to a transfer of this action in view of the disposition of the proceeding which prevented the prior consent. Nolan, P. J., Carswell, Adel, MaeCrate and Beldoek, JJ., concur.