Crowell-Collier Pub. Co. v. Josefowitz
| Decision Date | 05 March 1959 |
| Docket Number | CROWELL-COLLIER |
| Citation | 5 N.Y.2d 998,157 N.E.2d 730,184 N.Y.S.2d 859 |
| Parties | , 157 N.E.2d 730 PUBLISHING COMPANY et al., Respondents, v. Samuel JOSEFOWITZ et al., Individually and as Trustees under the Fenia Josefowitz Trust, et al., Appellants. |
| Court | New York Court of Appeals Court of Appeals |
Appeal from Supreme Court, Appellate Division, First Department, 5 A.D.2d 987, 173 N.Y.S.2d 992.
The complaint purported to allege four causes of action. In the first cause the plaintiffs sought to recover damages for alleged false representations. The second cause was predicated on breach of contract. In the third cause a claim was made for moneys had and received by defendants as result of the alleged fraud. The fourth cause was for cancellation of notes and guarantees and for the return of collateral deposited with defendants under contract allegedly induced by fraud. The defendants made a motion to strike certain portions of the complaint as sham, unnecessary, and irrelevant, pursuant to Rule 103 of the Rules of Civil Practice, a motion to dismiss the second cause of action for insufficiency pursuant to Rule 106, subd. 4, of the Rules of Civil Practice, and made a motion to require the service of an amended complaint separately stating and numbering causes of action asserted by each of the plaintiffs against the defendants, pursuant to Rule 90 of the Rules of Civil Practice.
The Supreme Court, Special Term, New York County, Henry Clay Greenberg, J., 9 Misc.2d 613, 170 N.Y.S.2d 373, denied the motions and held that provision in agreement that agreement was not induced by any representations, warranties, or covenants not contained in the agreement did not bar plaintiffs from asserting that they had been defrauded, and that complaint sufficiently alleged a duty or obligation to perform, and that where agreement on its face showed that rights and obligations of both plaintiffs were interwoven, there was no necessity for separate statements of the causes of action of each plaintiff, and that they could properly assert a joint claim. The defendants appealed.
The Appellate Division, 5 A.D.2d 987, 173 N.Y.S.2d 992, affirmed the order.
The Appellate Division, 6 A.D.2d 791, 175 N.Y.S.2d 560, denied motion for reargument but granted motion for leave to appeal to the Court of Appeals, and certified the following questions:
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...is one of the material distinctions between this case and Bridger v. Goldsmith (supra) and Crowell-Collier Pub. Co. v. Josefowitz (5 N.Y.2d 998, 184 N.Y.S.2d 859, 157 N.E.2d 730). In the Bridger case, the court considered the effect of a general disclaimer as to representations in a contrac......
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...disclaimer is one of the material distinctions between this case and Bridger v. Goldsmith, supra, and Crowell-Collier Pub. Co. v. Josefowitz, 5 N.Y.2d 998, 184 N.Y.S.2d 859. In the Bridger case, the court considered the effect of a general disclaimer as to representations in a contract of s......
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