Levy v. Black Angus, Inc.

24 A.D.2d 446, 260 N.Y.S.2d 883, 1965 N.Y. App. Div. LEXIS 3751

Opinion

Order dismissing fifth cause of action and judgment entered thereon unanimously modified on the law and in the exercise of discretion to allow plaintiff to apply at Special Term to replead said cause of action and, as so modified, affirmed, without costs or disbursements to any party. Special Term properly dismissed the fifth cause of action. Said cause of action does not allege specifically that the corporate defendant borrowed the sum in part from plaintiff. Properly interpreted, the language used in the complaint alleges that the sum was borrowed by the individual defendant, who intended to devote it to the use of the corporation. This would not constitute a cause of action against the corporation. If the pleader' intended to state that the money was borrowed by the corporation, he should have an opportunity to do so. (CPLR 3211, subd. [e].) Concur—• Rabin, J. P., McNally, Stevens, Steuer and Staley, JJ.