Solomon v. Travelers Fire Insurance

5 A.D.2d 1017, 174 N.Y.S.2d 85, 1958 N.Y. App. Div. LEXIS 6170

Opinion

In an action founded upon alleged errors and negligence on the part of a certified public accountant, the appeal is (1) from so much of an order granting a motion to dismiss the complaint on the ground that the complaint does not state facts sufficient to constitute a cause of action (Rules Civ. Prac., rule 106, subd. 4), and (2) from the judgment entered thereon. Order and judgment modified by striking from the first ordering paragraph of the order and from the first decretal paragraph of the judgment everything between “ a new action ” and “ and it is ” and order further modified by striking from the second ordering paragraph everything between “ by the plaintiff ” and “ and it is.” As so modified, order, insofar as appealed from, and judgment unanimously affirmed, with $10 costs and disbursements to appellant. While it would seem that appellant’s cause of action should be predicated on a fixation of damages by the Federal court (see People v. Metropolitan Sur. Co., 211 N. Y. 107), it may be that he will be able to state a cause of action on some other theory, and the court should not limit him in his choice of remedies.

Present — Nolan P. J., Wenzel, Ughetta, Hallinan and Kleinfeld, JJ.