Langsam v. Langsam

255 A.D. 711, 6 N.Y.S.2d 643, 1938 N.Y. App. Div. LEXIS 4876

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1938
• Status: Published

Opinion

Order modified so as to provide that the second cause of action in the amended complaint be struck out, and as so modified affirmed in so far as an appeal is taken therefrom, with ten dollars costs and disbursements to appellants. Defendants may serve their answer to the amended complaint within ten days from the entry of the order hereon. The Special Term should have struck from the second cause of action, as it did from the first cause of action, paragraph “ tenth ” of the complaint. With paragraphs “ tenth ” and “ sixteenth ” struck out, the second cause of action is identical with the first cause of action, and, therefore, is unnecessary. The prayer, including injunctive relief, may remain, as it is not part of the cause of action pleaded. (Wainwright & Page v. Burr & McAuley, 272 N. Y. 130; Lonsdale v. Speyer, 249 App. Div. 133.) The relief, if any, which may be awarded to plaintiff must be left for the determination of the trial court, based upon the proof presented. Lazansky, P. J., Hagarty, Johnston, Adel and Close, JJ., concur.