Zawadzki v. Vandetti

255 A.D. 932, 9 N.Y.S.2d 219, 1938 N.Y. App. Div. LEXIS 5889

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 16, 1938
• Status: Published

Opinion

Order reversed on the law in so far as it relates to the -motion separately to state and number the causes of action and motion granted in that respect, and otherwise affirmed, without costs of this appeal to either party.- Memorandum: Tested by rules by which the number of causes of action alleged in a complaint may be determined, we believe that plaintiff’s pleading alleges more than one cause of action, each of which should be separately stated and numbered. (Payne v. N. Y., S. & W. R. R. Co., 201 N. Y. 436, 440; Raftery v. Carter, 162 App. Div. 17, 20.) We recognize in the complaint a valid cause of action based upon a guosi-contraet. All concur, except Cunningham, J., who dissents and votes for reversal on the law and for dismissal of the complaint in the following memorandum: I am in favor of reversing the order and granting the motion of the defendant to dismiss the complaint. Plaintiff seeks to recover money in an action based upon a breach of promise of marriage. Article 2-A of the Civil Practice Act was enacted for the purpose of abolishing “ the remedies heretofore provided by law for the enforcement of actions based upon alleged * * * breach of contract to marry.” (Civ. Prac. Act, § 61-a.) The aEeged contract to marry having been made after March 29, 1935, it does not “ operate to give rise, either within or without this State, to any cause or right of action for the breach thereof.” (Civ. Prac. Act, § 61-d.) This article should be Hberally construed “ to effectuate the objects and purposes thereof and the public policy of the State as hereby declared.” (Civ. Prac. Act, § 61-h.) (The order denies a motion to dismiss the complaint in an action to declare nuE and void a biE of sale of an automobüe.) Present — Sears, P. J., Lewis, Cunningham, Taylor and Dowling, JJ.