Opinion
February 16, 1940.
Appeal from Supreme Court, Bronx county, Shientag, J.
Present — Martin, P.J., O'Malley, Townley, Untermyer and Dore, JJ.; O'Malley, J., dissents and votes to affirm; dissenting opinion by O'Malley, J.
Orders modified by granting motions to the extent of striking out paragraphs Fourth to Sixteenth, inclusive, all of paragraph Third with the exception of that part which alleges that "190th Street Jerome Avenue Corporation and Bronx Operating Co., Inc., were and still are domestic corporations" and striking out from paragraph Seventeenth the words "that by reason thereof," and, as so modified, affirmed, with twenty dollars costs and disbursements to the appellants. No opinion.
To be entitled to offer proof upon the trial to show why the corporate entity of the defendant 190th Street Jerome Avenue Corporation should be disregarded, the plaintiff of necessity set forth allegations of fraud and domination. These allegations (found in paragraphs "Third to Seventeenth," inclusive) are now to be stricken out by the order to be entered herewith, thus foreclosing the plaintiff under the new state of the pleadings from proffering evidence necessary to this important feature of her case.
It is to be noted that this form of pleading setting forth the reasons why the corporate entity should be disregarded was used in the case of Berkey v. Third Avenue Railway Co. ( 244 N.Y. 84) and is found in the supplemental amended complaint therein.
I, therefore, dissent and vote to affirm the orders appealed from.