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Cosmos Textile Corp. v. Erstein Bro., Inc.

Appellate Division of the Supreme Court of New York, First Department
Feb 1, 1935
243 App. Div. 296 (N.Y. App. Div. 1935)

Opinion

February 1, 1935.

Appeal from Supreme Court of New York County.

George Garfunkel, for the appellant.

Myron Wisoff, for the respondent.

Present — MARTIN, P.J., MERRELL, O'MALLEY, GLENNON and UNTERMYER, JJ.


Facts sufficient to constitute a cause of action for an accounting are pleaded. We have determined, therefore, that the court at Special Term properly denied the motion to dismiss.

The prayer for relief would seem to indicate that the plaintiff seeks to reform the written agreement entered into between the parties. While plaintiff has stated in its brief that the remedy is only incidental, it must be borne in mind that, in affirming, the court at this time is not holding that the allegations upon which it relies for a reformation are properly pleaded, or that such relief is necessary to enable the trial court to construe the agreement in the manner desired by the plaintiff.

The order appealed from should be affirmed, with twenty dollars costs and disbursements to the respondent, with leave to the defendant to answer within twenty days from service of order upon payment of said costs.


Order affirmed, with twenty dollars costs and disbursements, with leave to the defendant to answer within twenty days from service of order upon payment of said costs.


Summaries of

Cosmos Textile Corp. v. Erstein Bro., Inc.

Appellate Division of the Supreme Court of New York, First Department
Feb 1, 1935
243 App. Div. 296 (N.Y. App. Div. 1935)
Case details for

Cosmos Textile Corp. v. Erstein Bro., Inc.

Case Details

Full title:COSMOS TEXTILE CORPORATION, Respondent, v. J.H. ERSTEIN BRO., INC.…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Feb 1, 1935

Citations

243 App. Div. 296 (N.Y. App. Div. 1935)
276 N.Y.S. 1007