Halperin v. Lieberman ( 1946 )

This is an action for damages, based on fraud and conspiracy. Defendant Hirseh appeals from an order denying his motion to dismiss the complaint for insufficiency as to him, pursuant to subdivision 5 of rule 106 of the Rules of Civil Practice. Order reversed on the law, with $10 costs and disbursements, and the motion granted, with $10 costs, with leave to plaintiff to serve an amended complaint within twenty days after entry of the order hereon. We are of opinion that the bare allegation that the fraud practiced upon the plaintiff by defendants Lieberman, and the other defendants, as alleged in the complaint, was with appellant’s knowledge, and that appellant “ participated, aided, abetted, assisted, connived with and acquiesced in ” it, is a conclusion of law and is insufficient to constitute a cause of action against him. (Newton v. Livingston County Trust Go., 231 App. Div. 355; Lifshutz v. Adams, 285 N. Y. 180; Kalmanash v. Smith, 291 N. Y. 142.) Lewis, P. J., Hagarty and Adel, JJ., concur; Carswell and Johnston, JJ., dissent and vote to affirm. [See post, p. 976.]