Civil Practice Act rule in New York

1960In a memorandum decision dated May 12, 1959 ( 22 Misc 2d 822, 823 ), Mr. Justice Shapiro struck out the complaint upon defendants’ motion under section 241 of the Civil Practice Act and rule 103 of the Rules of Civil Practice on the ground that “It is replete with conclusions and superfluous matter and fails to furnish the defendants with a plain and concise statement of the material facts upon which the plaintiffs rely for a statement of their cause of action.” In a seven-page memorandum decision dated November 12, 1959 ( 22 Misc 2d 824, 828 ), Mr. Justice Margett, upon plaintiffs’ motion to

1959Upon two separate motions pursuant to section 241 of the Civil Practice Act and rule 103 of the Rules of Civil Practice addressed to the original complaint on the grounds that it failed to set forth a plain and concise statement of the material facts, that it contained sham, unnecessary, irrelevant and impertinent matter, au,d that it was replete with conclusions, the court struck that pleading in its entirety with leave to plead over succinctly the ultimate facts relied upon by plaintiffs ( 22 Misc 2d 822 ).

1959An action for declaratory judgment is appropriate for determination of a constitutional question, and jurisdiction should be entertained pursuant to section 473 of the Civil Practice Act and rule 212 of the Rules of Civil Practice (Dun & Bradstreet v. City of New York, 276 N. Y. 198, 206 ; Wingate v. Flynn, 139 Misc. 779 , affd. 233 App. Div. 785 , affd. 256 N. Y. 690 ; Tropp v. Knickerbocker Vil., 205 Misc. 200 , affd. 284 App. Div. 935 ).

1953This remedy, moreover, is particularly appropriate where a constitutional question is involved, or the legality or meaning of a statute is in question, and where there is no issue of fact (German Masonic Temple Assn. of City of N. Y. v. City of New York, 279 N. Y. 452 ; Dun d Bradstreet v. City of New York, 276 N. Y. 198 ).

1938In support of his argument counsel has submitted as authority for the granting of the order Lauffer v. Eastern Star Temple ( 210 App. Div. 619 ) and Matter of National City Bank (205 id. 513).

1938Lauffer v. Eastern Star Temple (supra) is without doubt authority for the granting to a plaintiff, who is not able to identify the person whom he wishes to make a defendant in an action which he intends to bring, of an order under section 295 of the Civil Practice Act and rule 123 of the Rules of Civil Practice, for the examination of any person or persons shown to have some knowledge or information as to the identification of any one who is liable to the prospective plaintiff.

1962In Lowsley v. Uretzky ( 205 Misc. 610, 613 ), the court stated: “It is apparent that there is a conflict between section 300 of the Civil Practice Act and rule 121-a of the Rules of Civil Practice if said rule 121-a is meant to provide that a party to be examined can then require by notice the examination of any other party to follow ‘ at the same time and place ’, even though that same place is not in the county where the other party resides or has an office for the regular transaction of business in person.

1962(Vulovich v. Baich, 286 App. Div. 403 , affd. 1 N Y 2d 735; see, also, Freygang v. Train, 42 Misc. 49 .) However, evidence which may be excluded upon the trial pursuant to section 347, while it may not be used as the basis for granting summary judgment, may be considered in ascertaining whether triable issues exist to preclude such relief.

1962(Jongers v. First Trust & Deposit Co., 147 Misc. 260 ; see, also, Schnibbe v. Glenz, 245 N. Y. 388 .) A motion under this rule does not permit the use of affidavits.

1961Co. v. Ladenheim Fixtures Corp., 14 Misc 2d 939 [1958].) Applications pursuant to section 476 of the Civil Practice Act and rule 112 of the Rules of Civil Practice are ordinarily addressed to the discretion of the court.

1961The accountants have cited Matter of Galbreath ( 17 Misc 2d 242 ) as authority for the proposition that a motion under section 181 of the Civil Practice Act and rule 156 of the Rules of Civil Practice to dismiss a complaint for failure of prosecution, may be made in this court by virtue of the provisions of section 316 of the Surrogate’s Court Act and rule 3 of the Rules of Civil Practice.

1961(Kletter v. Kletter, 26 Misc 2d 410 , mod. on another ground 12 A D 2d 610.) "No such limitations are found in section 476 of the Civil Practice Act and rule 112 of the Buies of Civil Practice.

1961Nolan, P, J., Beldock, Ughetta, Pette and Brennan, JJ., concur. [ 29 Misc 2d 677 .]

1961However, if it be assumed arguendo that the action is one in replevin, the mere fact that section 1094-a of the Civil Practice Act provides for the taking of testimony “in pursuance of an order of the court ” for the limited “ purpose of obtaining information with reference to the location of the chattel or any part thereof ”, does not preclude the taking of testimony pursuant to notice for the general examination prescribed by section 290 of the Civil Practice Act and rule 121-a of the Rules of Civil Practice (Miller v. Stern, 262 App. Div. 5, 7-8 ; 1 McCullen, Examinations Before Trial [rev.

1961However, if it be assumed arguendo that the action is one in replevin, the mere fact that section 1094-a of the Civil Practice Act provides for the taking of testimony “in pursuance of an order of the court ” for the limited “ purpose of obtaining information with reference to the location of the chattel or any part thereof ”, does not preclude the taking of testimony pursuant to notice for the general examination prescribed by section 290 of the Civil Practice Act and rule 121-a of the Rules of Civil Practice (Miller v. Stern, 262 App. Div. 5, 7-8 ; 1 McCullen, Examinations Before Trial [rev.

1961(Stevenson v. News Syndicate Co., 302 N. Y. 81 [1950].) But where the motion is treated solely as a challenge to the legal sufBciency of the complaint or of the defense, only questions of law are involved; not considerations of discretion.

1960General allegations of misconduct will not do in the absence of statements of those facts upon which are based the pleader’s conclusions that the acts of which complaint is made are wrongful, lacking in good faith, or unlawful, as the case may be. £ £ £ A pleading which, fairly construed, failed to allege any facts which constitute a wrong but only general conclusions, is entirely insufficient and may be dismissed on that ground.’” (Gerdes v. Reynolds, 281 N. Y. 180, 183, 184 .)’ (Kalmanash v. Smith, supra, p. 153 .) The rule that a pleading, attacked for legal insufficiency, must be accorded

1960In a memorandum decision dated May 12, 1959 ( 22 Misc 2d 822, 823 ), Mr. Justice Shapiro struck out the complaint upon defendants’ motion under section 241 of the Civil Practice Act and rule 103 of the Rules of Civil Practice on the ground that “It is replete with conclusions and superfluous matter and fails to furnish the defendants with a plain and concise statement of the material facts upon which the plaintiffs rely for a statement of their cause of action.” In a seven-page memorandum decision dated November 12, 1959 ( 22 Misc 2d 824, 828 ), Mr. Justice Margett, upon plaintiffs’ motion to

1960General allegations of misconduct will not do in the absence of statements of those facts upon which are based the pleader’s conclusions that the acts of which complaint is made are wrongful, lacking in good faith, or unlawful, as the case may be. £ £ £ A pleading which, fairly construed, failed to allege any facts which constitute a wrong but only general conclusions, is entirely insufficient and may be dismissed on that ground.’” (Gerdes v. Reynolds, 281 N. Y. 180, 183, 184 .)’ (Kalmanash v. Smith, supra, p. 153 .) The rule that a pleading, attacked for legal insufficiency, must be accorded

1960In a memorandum decision dated May 12, 1959 ( 22 Misc 2d 822, 823 ), Mr. Justice Shapiro struck out the complaint upon defendants’ motion under section 241 of the Civil Practice Act and rule 103 of the Rules of Civil Practice on the ground that “It is replete with conclusions and superfluous matter and fails to furnish the defendants with a plain and concise statement of the material facts upon which the plaintiffs rely for a statement of their cause of action.” In a seven-page memorandum decision dated November 12, 1959 ( 22 Misc 2d 824, 828 ), Mr. Justice Margett, upon plaintiffs’ motion to

1959Corp. [Corsi], 296 N. Y. 113,118 , motion for reargument denied 296 N. Y. 857 ; Matter of Newbrand v. City of Yonkers, 285 N. Y. 164, 174-175 ; Matter of Schwab v. McElligott, 282 N. Y. 182 ; Matter of McCall Corp. v. Gerosa, 2 A D 2d 358.) Accordingly, the respondent State officials’ cross motion to dismiss the petition pursuant to section 1293 of the Civil Practice Act and rule 106 of the Rules of Civil Practice is denied with leave to them to serve an answer within 10 days after the service upon the Attorney-General of a copy of the order to be entered hereon with notice of entry thereof.

1959An action for declaratory judgment is appropriate for determination of a constitutional question, and jurisdiction should be entertained pursuant to section 473 of the Civil Practice Act and rule 212 of the Rules of Civil Practice (Dun & Bradstreet v. City of New York, 276 N. Y. 198, 206 ; Wingate v. Flynn, 139 Misc. 779 , affd. 233 App. Div. 785 , affd. 256 N. Y. 690 ; Tropp v. Knickerbocker Vil., 205 Misc. 200 , affd. 284 App. Div. 935 ).

1959Corp. [Corsi], 296 N. Y. 113,118 , motion for reargument denied 296 N. Y. 857 ; Matter of Newbrand v. City of Yonkers, 285 N. Y. 164, 174-175 ; Matter of Schwab v. McElligott, 282 N. Y. 182 ; Matter of McCall Corp. v. Gerosa, 2 A D 2d 358.) Accordingly, the respondent State officials’ cross motion to dismiss the petition pursuant to section 1293 of the Civil Practice Act and rule 106 of the Rules of Civil Practice is denied with leave to them to serve an answer within 10 days after the service upon the Attorney-General of a copy of the order to be entered hereon with notice of entry thereof.

1959Corp. [Corsi], 296 N. Y. 113,118 , motion for reargument denied 296 N. Y. 857 ; Matter of Newbrand v. City of Yonkers, 285 N. Y. 164, 174-175 ; Matter of Schwab v. McElligott, 282 N. Y. 182 ; Matter of McCall Corp. v. Gerosa, 2 A D 2d 358.) Accordingly, the respondent State officials’ cross motion to dismiss the petition pursuant to section 1293 of the Civil Practice Act and rule 106 of the Rules of Civil Practice is denied with leave to them to serve an answer within 10 days after the service upon the Attorney-General of a copy of the order to be entered hereon with notice of entry thereof.

1959In this cause of action plaintiff charges said defendants, who are attorneys, with advising and inducing defendants Morrell to breach the contract with plaintiff, thus stating a cause of action (Hornstein v. Podwitz, 254 N. Y. 443 ), and to accomplish such breach by acts tortious in character.

1959Both under section 324 of the Civil Practice Act and rule 140 of the Buies of Civil Practice implementing it, only a party to a pending action may be directed “ to make discovery of any article or property, in his possession or under his control, relating to the merits of the action, or of the defense therein.” And so it was held by the Appellate Division of the Second Department in Rubel Corp. v. Rosoff ( 251 App. Div. 868 ) and Goldstein v. Kaye (2 A D 2d 889).

1959(Ehde v. State of New York, 260 App. Div. 511 [1940]; Stevens v. State of New York, 277 App. Div. 418 [1950].) Nor are what may seem to be the broader provisions of subdivision 8 of section 9 of the Court of Claims Act sufficient to overcome the limitations imposed by the Civil Practice Act and the Rules of Civil Practice.

1959An action for declaratory judgment is appropriate for determination of a constitutional question, and jurisdiction should be entertained pursuant to section 473 of the Civil Practice Act and rule 212 of the Rules of Civil Practice (Dun & Bradstreet v. City of New York, 276 N. Y. 198, 206 ; Wingate v. Flynn, 139 Misc. 779 , affd. 233 App. Div. 785 , affd. 256 N. Y. 690 ; Tropp v. Knickerbocker Vil., 205 Misc. 200 , affd. 284 App. Div. 935 ).

1959Indeed, in Beasley v. Huntley Estates at Ardsley (137 N. Y, S, 2d 784, affd 285 App. Div. 887 ), it was held that a party is not entitled to a discovery and inspection of papers and records in the custody of a third person not a party to an action and not under the control of such party and that he may not have such inspection in connection with such third party’s pretrial examination as a witness.

1959An action for declaratory judgment is appropriate for determination of a constitutional question, and jurisdiction should be entertained pursuant to section 473 of the Civil Practice Act and rule 212 of the Rules of Civil Practice (Dun & Bradstreet v. City of New York, 276 N. Y. 198, 206 ; Wingate v. Flynn, 139 Misc. 779 , affd. 233 App. Div. 785 , affd. 256 N. Y. 690 ; Tropp v. Knickerbocker Vil., 205 Misc. 200 , affd. 284 App. Div. 935 ).

1959An action for declaratory judgment is appropriate for determination of a constitutional question, and jurisdiction should be entertained pursuant to section 473 of the Civil Practice Act and rule 212 of the Rules of Civil Practice (Dun & Bradstreet v. City of New York, 276 N. Y. 198, 206 ; Wingate v. Flynn, 139 Misc. 779 , affd. 233 App. Div. 785 , affd. 256 N. Y. 690 ; Tropp v. Knickerbocker Vil., 205 Misc. 200 , affd. 284 App. Div. 935 ).