Guarino v. Guarino

Appellate Division of the Supreme Court of New York

Guarino v. Guarino

3 A.D.2d 889, 161 N.Y.S.2d 688, 1957 N.Y. App. Div. LEXIS 5804

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

DecidedApril 17, 1957

StatusPublished

This text of 3 A.D.2d 889 (Guarino v. Guarino) 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

Guarino v. Guarino, 3 A.D.2d 889, 161 N.Y.S.2d 688, 1957 N.Y. App. Div. LEXIS 5804 (N.Y. Ct. App. 1957).

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Opinion

Order reversed on the law, with $10 costs and disbursements and motion denied, with $10 costs. Memorandum: The first cause of action is sufficiently supported by the alleged oral agreement between the parties. Since the motion was to dismiss the complaint, and each cause of action therein, for failure to state facts sufficient to constitute a cause of action (Rules Civ. Prac., rule 106, [890]*890subd. 4), the defense of the Statute of Frauds may not be considered (McKenna v. Meehan, 248 N. Y. 206, 212; cf. Rules Civ. Prac., rule 107, subd. 7). Neither may we speculate as to the effect of the parol evidence rule, or dismiss the complaint in anticipation of difficulties which the plaintiff may experience in establishing his case upon the trial (Gale v. Ryan, 263 App. Div. 76, 78). The second cause of action contains all the essential allegations for an accounting and therefore may not 'be dismissed. All concur. (Appeal from an order of Brie Special Term granting defendant’s motion for a dismissal of plaintiff’s complaint, but with leave to serve an amended complaint.) Present — MeCurn, P. J., Vaughan, Kimball, Williams and Bastow, JJ.

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Order reversed on the law, with $10 costs and disbursements and motion denied, with $10 costs. Memorandum: The first cause of action is sufficiently supported by the alleged oral agreement between the parties. Since the motion was to dismiss the complaint, and each cause of action therein, for failure to state facts sufficient to constitute a cause of action (Rules Civ. Prac., rule 106, [890]*890subd. 4), the defense of the Statute of Frauds may not be considered (McKenna v. Meehan, 248 N. Y. 206, 212; cf. Rules Civ. Prac., rule 107, subd. 7). Neither may we speculate as to the effect of the parol evidence rule, or dismiss the complaint in anticipation of difficulties which the plaintiff may experience in establishing his case upon the trial (Gale v. Ryan, 263 App. Div. 76, 78). The second cause of action contains all the essential allegations for an accounting and therefore may not 'be dismissed. All concur. (Appeal from an order of Brie Special Term granting defendant’s motion for a dismissal of plaintiff’s complaint, but with leave to serve an amended complaint.) Present — MeCurn, P. J., Vaughan, Kimball, Williams and Bastow, JJ.

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Bluebook (online)

3 A.D.2d 889, 161 N.Y.S.2d 688, 1957 N.Y. App. Div. LEXIS 5804, Counsel Stack Legal Research, https://law.counselstack.com/opinion/guarino-v-guarino-nyappdiv-1957.

Opinion

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