Zeltser v. Mark

7 A.D.2d 851, 181 N.Y.S.2d 546, 1959 N.Y. App. Div. LEXIS 10447

Opinion

In an action for an accounting, and for other relief, the appeal, as limited by appellants’ brief, is from so much of an order striking out three of the four demands for relief set forth in the complaint as denied in all other respects appellants’ motion to dismiss the complaint for insufficiency or for alternative relief. Order modified so as to provide that the complaint be dismissed, with leave to serve an amended complaint separately stating and numbering each cause of action against each defendant. As so modified, order insofar as appealed from affirmed, with $10 costs and disbursements to appellants. The amended complaint is to be served, if respondent be so advised, within 10 days after the entry of the order hereon. Since no appeal was taken from that part of the order which struck out the second, third and fourth demands for relief, the only relief sought by the complaint is an accounting. To entitle the respondent to such relief the complaint must set forth facts from which the existence of a fiduciary relationship between the parties can properly be inferred (Schantz v. Oakman, 163 N. Y. 148; Boiardi v. Marden, Orth & Hastings Corp., 194 App. Div. 307; Westchester Plastics v. Lazard, 81 N. Y. S. 2d 543). Nolan, P. J., Murphy, Ughetta, Hallinan and Kleinfeld, JJ., concur.