Citation Numbers: 31 Misc. 2d 734
Judges: McGtvern
Filed Date: 11/3/1961
Status: Precedential
Modified Date: 2/5/2022
Defendant Savin Business Machines Corporation moves pursuant to subdivision 4 of rule 106 of the Buies of Civil Practice for dismissal of the complaint as to it. Two causes are stated, both in equity. Plaintiff alleges that he and the defendant Janos Szekeres became associated together in business which was conducted by them through the instrumentality of the defendant Janos, Inc. The capital stock of that corporation was held by the defendant Janos Szekeres, but 50% thereof, it is alleged, was held by him in trust for plaintiff. The assets of the corporation were sold and transferred to the defendant Savin. As to such sale, plaintiff alleges fraud. He
In a second cause it is alleged that subsequently, by repetition of the same fraudulent inducements and by additional fraudulent inducements, plaintiff was induced to execute releases which, unless barred, will prevent recovery upon the first cause of action. The releases do not run to the defendant Savin. Moreover, it is not clear from the allegations of the second cause and from the prayer for relief whether thereby plaintiff seeks only annulment of the releases and the contemporaneous agreement, or that and an additional accounting.
Plaintiff contends that accounting and recovery of money judgment is sought by the first cause only and that by the second cause he seeks annulment only. In that event, defendant Savin is not a necessary or proper party.
The motion is granted, with leave to plaintiff to serve an amended complaint within 20 days from service of a copy of this order with notice of entry.