Lustig v. Lustig

269 A.D. 571, 56 N.Y.S.2d 284

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 27, 1945
• Status: Published

Opinion

Per Curiam.

The orders denying the motion for physical examination should be affirmed, with leave to renew if the complaint be amended to show concealment of physical or mental ailments of such a vital nature as to support a claim that plaintiff’s consent was obtained by fraud. The allegation of the complaint to the effect that the defendant represented that he was in good health and that he had no mental or physical ailments, disabilities or disorders, and the further allegation as to the falsity thereof, are insufficient to show concealment of a disease or disorder so marked as to amount to a fraud. (Lapides v. Lapides, 254 N. Y. 73.)

The allegations concerning defendant’s misrepresentations as to the reason for his draft classification, add nothing on the score indicated. Amplification in a bill of particulars would not support an insufficient complaint.

Martin, P. J., Townley, Glennon, Cohn and Callahan, JJ., concur.

Orders unanimously affirmed. Settle order on notice.