Opinion
December 10, 1951.
Appeal by defendant from an order which denied its motion to dismiss the complaint pursuant to subdivision 5 (now subd. 4) of rule 106 of the Rules of Civil Practice. Order affirmed, with $10 costs and disbursements, with leave to defendant to answer within ten days after service of the order to be entered hereon. In our opinion, the first cause of action alleged facts sufficient to state a cause of action for conversion. ( Mallory Associates v. Barving Realty Co., 300 N.Y. 297.) Such being the case, the motion to dismiss, directed to the entire complaint, was properly denied, and it is unnecessary to determine whether the second cause of action alleged states facts sufficient to constitute any other separate cause of action. ( Advance Music Corp. v. American Tobacco Co., 296 N.Y. 79, 84; Imperatrice v. Imperatrice, 298 N.Y. 549, 550.) Nolan, P.J., Carswell, Johnston, Sneed and Wenzel, JJ., concur.