Hyman v. Levin

243 A.D. 6, 276 N.Y.S. 20, 1934 N.Y. App. Div. LEXIS 5470

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 14, 1934
• Status: Published

Opinion

Per Curiam.

The complaint sets out a good cause of action on an account stated. The alleged defense of failure to carry out the agreement pleaded in paragraph “ IV ” is bad because no facts are stated to support the conclusions alleged. The counterclaims set out in paragraphs “ XIV,” “ XV,” “ XVI ” and “ XXVI ” and “ XXVII ” are insufficient. The defendants were under no obligation to advise plaintiffs when to sell stocks carried in their accounts. Neither duty nor negligence toward defendants is shown by any facts pleaded.

The order of April 3, 1934, denying the motion to strike out defenses and counterclaims, should be modified by granting the motion to strike from the answer paragraphs “ IV,” “ XIV,” “ XV,” “ XVI,” “ XXVI ” and “ XXVII,” and as so modified affirmed, without costs, with leave to the plaintiffs to reply within twenty days after service of a copy of order with notice of entry. The order denying defendants’ motion for judgment on the pleadings should be affirmed, with twenty dollars costs and disbursements to the plaintiffs.

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

On plaintiffs’ appeal: Order modified by granting motion to strike from the amended answer paragraphs “ IV,” “ XIV,” “ XV,” “XVI,” “XXVI” and “XXVII,” and as so modified affirmed, without costs, with leave to the plaintiffs to reply within twenty days from service of order.

On defendants’ appeal: Order affirmed, with twenty dollars costs and disbursements.