Citation Numbers: 7 Misc. 2d 174
Judges: Herzka
Filed Date: 8/6/1957
Status: Precedential
Modified Date: 2/5/2022
Motion by defendants to dismiss the complaint pursuant to rule 106 of the Rules of Civil Practice.
The complaint contains two causes of action, the first alleging that defendants withdrew from the corporation, and applied to their own use, funds in excess of those to which they were entitled, and the second, that the defendants improperly diverted corporate funds. On a prior motion in this action plaintiff moved under subdivision 6 of rule 109 of the Rules of Civil Practice to strike the defenses contained in defendants ’ answer as insufficient in law. The section provides that if a motion is made to strike a defense for legal insufficiency, and
There is presented, on the instant motion, the question whether the sufficiency of the complaint was upheld upon the determination of the motion to strike the defenses. A motion addressed to the sufficiency of the defenses contained in an answer searches the record and necessarily presents for determination the sufficiency of the complaint. (Baxter v. McDonnell, 154 N. Y. 432, 436; Cavanagh v. Hutcheson, 140 Misc. 178, affd. 236 App. Div. 794; Brand v. Gromet, 3 Misc 2d 991; Gordon v. Siegel, 125 N. Y. S. 2d 862.) Therefore, the court in passing upon such motion is called upon to determine the sufficiency of the complaint before it will consider the sufficiency of the defenses contained in the answer (Salimoff & Co. v. Standard Oil Co. of New York, 237 App. Div. 686, affd. 262 N. Y. 220).
In the instant case on the prior motion defendants in their brief particularly directed the court’s attention to the question of the sufficiency of the complaint. "Whether the defective matter sought to be stricken from the answer is of a technical or substantive nature, a dismissal of the complaint makes unnecessary a determination of the validity of the answer (Arista Oil Products Corp. v. Dutch American Mercantile Corp., 1 A D 2d 877; C. I. T. Corp. v. Daley, 143 Misc. 712; Garfinkel v. Pate, 66 N. Y. S. 2d 586; Cochran v. Wyer, 203 Misc. 890).
Accordingly it must be deemed that the sufficiency of the complaint in this action was presented for determination upon the prior motion and was upheld. This court will not disregard such determination (Feld v. Hanscom Baking Corp., N. Y. L. J., April 13, 1948, p. 1368, col. 6).
Aside from the order entered on the previous motion, it appears that the complaint upon its face states good causes of action. The reasons assigned by defendants in their memorandum for a dismissal of the complaint all relate to matters which even if accepted as true do not appear upon the face of the complaint. Facts regarding ratification, condonation and lack of authority, none of which are referred to in the language of
Motion to dismiss denied. Submit order.