Graymount v. Schlemmer

283 A.D. 859, 130 N.Y.S.2d 156, 1954 N.Y. App. Div. LEXIS 5534

Opinion

— Orders and judgments unanimously affirmed, with costs and disbursements to the respondents. The plaintiff upon motion made by the defendant, Else F. Schlemmer, for summary judgment under rule 113 of the Rules of Civil Practice, did not disclose evidentiary facts in his answering affidavits sufficient to entitle him to a trial of the issues. The motion of the defendant, Berdon, to dismiss the second cause of action was properly granted. This cause may not stand alone without the support of the allegations of the first cause. It having been found that the first cause presents no triable issue the second cause does not state facts sufficient to constitute a cause of action. Furthermore, the second cause of action alleges no acts on the part of the defendant, Berdon, that were prejudicial to plaintiff’s claimed cause of action to recover on quantum meruit as alleged only against the defendant, Schlemmer, in the first cause. Present — Peck, P. J., Dore, Cohn, Bastow and Botein, JJ. [204 Misc. 667.] [See post, p. 1030.]