Tobias v. Cellar

267 A.D. 839, 46 N.Y.S.2d 117, 1944 N.Y. App. Div. LEXIS 5041

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 31, 1944
• Status: Published

Opinion

Appeal by plaintiffs from an order granting defendants’ motions under rule 112 of the Rules of Civil Practice for judgment on the pleadings, dismissing all causes of action in the amended complaint insofar as they relate to breach of trust or breach of fiduciary obligation or breach of contract as trustee or fiduciary. Order modified on the law and the facts by inserting therein a provision directing plaintiffs to serve an amended complaint eliminating all allegations in each cause of action which relate to alleged breach of trust or breach of fiduciary obligation, and, as thus modified, affirmed, with one bill of ten dollars costs and disbursements to the respondents. Ho doubt defendants would accept an amended complaint without a provision in the order directing the service of one. The provision is inserted, however, in order that confusion may be avoided on the trial, in view of the motions for judgment having been made without previously having" the causes of action separately stated and numbered. Close, P. J., Hagarty, Carswell, Johnston and Adel, JJ., concur. [180 Misc. 421.] [See post, p. 884.]