Harper v. May's Furs & Ready-to-Wear, Inc.

262 A.D. 1013, 30 N.Y.S.2d 530

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 31, 1941
• Status: Published

Opinion

Peb Curiam.

The complaint contains a great many unnecessary allegations; nevertheless, facts are set forth in the second, fourth and fifth causes of action for false arrest, slander and malicious prosecution, respectively, sufficient to defeat a motion to dismiss under rule 106 of the Rules of Civil Practice.

Why the pleader saw fit to attempt to spell out a breach of an implied contract in the third cause of action, when simple allegations sufficient to hold the corporate defendant in tort for the alleged assault would be proper, is difficult to understand.

Accordingly, the order in so far as it dismisses the second, fourth and fifth causes of action should be reversed, and the motion denied, and that part thereof which pertains to the third cause of action affirmed, without costs, with leave to plaintiffs to serve a further amended complaint within twenty days from the date of entry of order.

Present — Martin, P. J., O’Malley; Townley, Glennon and Untermyer, JJ.

Order, in so far as it dismisses the second, fourth and fifth causes of action, unanimously reversed, without costs, and the motion denied, and that part thereof which pertains to the third cause of action affirmed, with leave to the plaintiffs to serve a further amended complaint within twenty days after service of order.