Opinion
01-05-1950
Harris Levin, as Trustee in Bankruptcy of Zohn's Refrigerated Trucking Service, Inc., Respondent, v. Peggy Equities Corp., Appellant.
Sidney B. Alexander and Maxwell Berman for appellant. Elias Mann and Benjamin Weintraub for respondent. HAMMER, HOFSTADTER and EDER, JJ., concur. Per Curiam. The action is predicated on section 233 of the Real Property Law for the alleged conversion of security. The complaint is insufficient in that it fails to set forth the provisions concerning the deposit of the security and the rights of the parties with respect to its keeping or use. It further fails to set forth the obligations of plaintiff's bankrupt under the lease and any allegation that plaintiff's bankrupt had duly performed all its obligations under the lease (Mallory Associates v. Barving Realty Co., 85 N. Y. S. 2d 680, 681). Under the circumstances, therefore, it was error for the court to have granted the motion even if it were to be conceded that the allegations stricken were insufficient. The order should be reversed, with $10 costs and disbursements, and motion denied. Order reversed, etc.