O'Brien v. American Beverage Corp.

267 A.D. 813, 45 N.Y.S.2d 760

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 28, 1944
• Status: Published

Opinion

Per Curiam.

The affidavit submitted by the plaintiffs in opposition to the defendants-appellants’ motion for summary judgment fails to allege facts to sustain the first cause of action contained in the consolidated amended complaint. The documentary evidence offered by the defendants-appellants establishes conclusively the limited nature of the services to be rendered by them and that those services did not contemplate an audit or examination of the accounts of Prendergast-Davis Co., Ltd. The plaintiffs have failed to set forth any facts, as distinguished from suspicions and conclusions, indicating that the defendants-appellants were implicated in the acts which resulted in the loss sustained by the American Beverage Corporation.

The order, so far as appealed from, should be reversed, with twenty dollars costs and disbursements, and the motion to dismiss the first cause of action in the consolidated amended complaint granted.

Present — Martin, P. J., Townley, Untermyer, Dore and Cohn, JJ.

Order, so far as appealed from, unanimously reversed, with twenty dollars costs and disbursements, and the motion to dismiss the first cause of action in the consolidated amended complaint granted. Settle order on notice.