Pennington v. Ziman
| Decision Date | 29 May 1961 |
| Parties | Ann G. PENNINGTON, Plaintiff-Respondent, v. Edmund ZIMAN, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
A. S. Basel, New York City, for plaintiff-respondent.
J. Calderon, New York City, for defendant-appellant.
Before BOTEIN, P. J., and BREITEL, VALENTE, McNALLY and STEVENS, JJ.
Order entered on July 28, 1960, denying defendant's motion to dismiss the complaint under Rules 106 and 107, subd. 4 of the Rules of Civil Practice, unanimously reversed, on the law, with $20 costs and disbursements to appellant, and the motion granted, with $10 costs, with leave, however, for the plaintiff-respondent to replead, if so advised, upon a showing by allegation of ultimate facts that a rescission of the agreement would accomplish some proper purpose, since equity will not suffer the making of a vain order. (Cf., Sivakoff v. Sivakoff, 280 App.Div. 106, 108, 111 N.Y.S.2d 864, 866). Order filed.
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