Opinion
September 23, 1927.
Hayes Palmer [ Du Bois J. Gillette of counsel], for the plaintiff.
Neil P. Cullom [ Gregory S. Rivkins on the brief], for the defendants.
Motion to dismiss the amended complaint herein on the ground that the complaint fails to state facts sufficient to constitute a cause of action is granted. Attempt is made in this amended complaint to state a cause of action, presumably for breach of confidential or trust relationship and/or unfair competition. Plaintiff states that the action is not one for infringement of a patent, of which this court could have no jurisdiction, but for the violation of fiduciary relationship involving the misuse of confidential information and the appropriation of such information, of which this court has jurisdiction. ( Underhill v. Schenck, 238 N.Y. 7.) Independent analysis of the amended complaint reveals its insufficiency. Comparative analysis with the original complaint dismissed by order of the Appellate Division lends additional support to this determination. ( Lawton v. Ruthrauff Ryan, 219 A.D. 267.) Nothing essentially new has been added to remedy the defects pointed out by the Appellate Division in the original complaint. Insufficient facts are alleged to make out the fiduciary relationship; the repetitious use of the words "confidential" and "advisor" do not make out such a relationship without more. Nor is a cause of action for unfair competition established. Nor is there sufficient basis for an action for an accounting. ( Gilbert Paper Co. v. Prankard, 204 A.D. 83; Marshall v. Thompson Feature Service, 216 id. 428; Wise v. Tube Bending Machine Co., 194 N.Y. 272.) It is not necessary to go into the question of a misjoinder of parties defendant.
Plaintiff is granted leave to serve an additional amended complaint within ten days.