Shindler v. Lamb

• Decision Date: 05 January 1961
• Citation: 9 N.Y.2d 621,210 N.Y.S.2d 226,172 N.E.2d 79
• Parties: , 172 N.E.2d 79 David S. SHINDLER, Respondent, v. Edmund F. LAMB et al., Appellants, and B. George Ulizio et al., Defendants.
• Court: New York Court of Appeals Court of Appeals

Page 226

210 N.Y.S.2d 226

9 N.Y.2d 621, 172 N.E.2d 79

David S. SHINDLER, Respondent, v. Edmund F. LAMB et al., Appellants, and B. George Ulizio et

al., Defendants.

Court of Appeals of New York.

Jan. 5, 1961.

Appeal from Supreme Court, Appellate Division, First Department, 10 A.D.2d 826, 200 N.Y.S.2d 346.

Action was brought against officers and directors of corporation and others. The first cause of action alleged that defendants by alleged fraudulent and false representations induced plaintiff to advance certain sum to the corporation. The second cause of action charged a conspiracy to defraud based on the same alleged fraud and seeking the same alleged damages. The Supreme Court, Special Term, New York County, Greenberg, J., rendered an order denying the motion of the officers and directors of the corporation to dismiss the complaint, and they appealed.

The Appellate Division, 10 A.D.2d 826, 200 N.Y.S.2d 346, unanimously affirmed the order without opinion.

The Appellate Division, 11 A.D.2d 647, 203 N.Y.S.2d 1010, granted motion for leave to appeal to the Court of Appeals.

Questions were certified as follows: '1. Did the Appellate Division err, as a matter of law, in affirming the order of Special Term denying the motion of defendants-appellants to dismiss the first cause of action set forth in the complaint pursuant to Rule 106(4) of the Rules of Civil Practice upon the groujd that said cause of action on its face does not state facts sufficient to constitute a cause of action because it does not allege damages recoverable in this action? 2. Did the Appellate Division err, as a matter of law, in affirming the order of Special Term denying the motion of defendants-appellants to dismiss the second cause of action set forth in the complaint pursuant to Rule 106(4) of the Rules of Civil Practice upon the ground that said cause of action on its face does not state facts sufficient to constitute a cause of action because it does not allege damages recoverable in this action?'

The officers and directors appealed to the Court of Appeals, contending that motion to dismiss the complaint for insufficiency should have been granted, and that the complaint was insufficient on its face because it sought items of damages which were not recoverable in the action.

Willkie, Farr, Gallagher, Walton & FitzGibbon, New York City (Mark F. Hughes and Vincent R. FitzPatrick, New York City, of counsel), for defendants-appellants Edmund F. Lamb, Joseph Mercadante and ...