Migliaccio v. Risch

246 A.D. 610

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1935
• Status: Published

Opinion

Order denying motion to strike out a portion of the complaint pursuant to rule 103 of the Rules of Civil Practice reversed on the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to answer within ten days from the entry of the order herein. The alleged knowledge of the ■ appellants at the time of the conveyance of the existence of the violation and of respondent’s impoverished condition had no relation to the foreclosure which went to judgment more than eight years later and constitutes no basis for recovery of special damages. Young, Hagarty, Carswell and Davis, JJ., concur; Lazansky, P. J., dissents, being of opinion that the complaint should be dismissed on the ground that it does not state facts sufficient to constitute a cause of action and, therefore, there is no need of striking out certain allegations.