Hirn v. Harris

30 A.D.2d 951, 294 N.Y.S.2d 165, 1968 N.Y. App. Div. LEXIS 3189

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 15, 1968
• Status: Published

Opinion

Order entered December 7, 1967, denying motion to dismiss complaint unanimously reversed on the law and motion granted with leave however to plaintiff to apply to Special Term to serve an amended complaint, without costs and disbursements to either party. Defendant’s motion to dismiss the complaint was based on two grounds: that the court did not acquire jurisdiction by service without the State, and that the complaint does not state a cause of action. We agree with Special Term that service was properly effected. The complaint however is defective. The action is in fraud arising out of the sale of oil leases. Aside from patently conelusory allegations, no fraud is set out. The complaint fails to state in what respect the alleged representations were false, whether they referred to past or future earnings of the property; and if future earnings are included, the representations misstated defendant’s actual belief. To limit further applications on the motion to replead, plaintiff should submit the proposed amended complaint with sufficient factual support by way of affidavit, so that Special Term may be in a position to pass on its validity. Concur — Eager, J. P., Steuer, Tilzer, Rabin and Macken, JJ.