Viola v. De Stefano

277 A.D.2d 999

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 16, 1950
• Status: Published

Opinion

The complaint contains three causes of action: (1) against both defendants for hreaeh of an employment contract and against the individual defendant for wrongfully inducing breach of the contract; (2) for the value of. certain shares of stock which defendants failed to deliver, and (3) for the value of assets turned over to the corporate defendant. Defendants moved to dismiss each of the causes of action for insufficiency, and for other alternative relief. By an order, dated May 1, 1950, the first cause of action was dismissed, and defendants’ motion for all other relief was denied. By an order, dated May 24, 1950, plaintiff’s motion for leave to serve an amended complaint was denied. By an order, dated June 7, 1950, plaintiff’s motion for resettlement and reargument of the first motion was denied. Plaintiff appeals from all three orders insofar as he is adversely affected, and defendants appeal from those portions of the first order which adversely affect them. The order of May 1, 1950, is modified on the law and the facts by inserting after the word “ dismissed ”, in the first ordering paragraph, the words “ with leave to serve an amended complaint.” As so modified, the order, insofar as appealed from, is affirmed, with $10 costs and disbursements to plaintiff. The amended complaint shall be served within ten days from the entry of the order hereon. It was an improvident exercise of discretion to deny plaintiff an opportunity to plead over. Appeal from order of May 24, 1950, dismissed, without costs, as academic. Appeal from order of June 7, 1950, dismissed, without costs, as nonappealable. Johnston, Acting P. J., Adel, Sneed, Wenzel and MacCrate, JJ., concur.