Matchette v. Statler

Full title: FRANKLIN J. MATCHETTE, Appellant, Respondent, v. ALICE S. STATLER…

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

Date published: Jan 29, 1932

234 App. Div. 306 (N.Y. App. Div. 1932)

255 N.Y.S. 125

Opinion

January 29, 1932.

Appeal from Supreme Court of New York County.

Frank P. Walsh of counsel [ William P. McCool with him on the brief; Frank P. Walsh, attorney], for the plaintiff.

James McCormick Mitchell of counsel [ William I. Morey with him on the brief; Kenefick, Cooke, Mitchell, Bass Letchworth and Sullivan Cromwell, attorneys], for the defendants.

Present — FINCH, P.J., MERRELL, O'MALLEY, SHERMAN and TOWNLEY, JJ.

PER CURIAM.

The first cause of action considered as a pleading sets forth a breach of a primary obligation of the defendants' testator to see to it that Hotels Statler Company, Inc., would faithfully perform its written contract with plaintiff. In the form pleaded, the Statute of Frauds has no application.

The second cause of action sounds in tort and alleges that defendants' testator maliciously interfered in the performance by Hotels Statler Company, Inc., of its written contract with plaintiff and induced a breach of the contract by the Hotels Statler Company, Inc. In form the second cause of action is also sufficiently pleaded. ( Lumley v. Gye, 2 El. Bl. 216; Hornstein v. Podwitz, 254 N.Y. 443.)

Accordingly, the order should be modified by denying the motion to dismiss the first cause of action, and as modified affirmed, with ten dollars costs and disbursements to plaintiff.

PER CURIAM.

Order so far as appealed from modified by denying motion to dismiss the first cause of action, and as so modified affirmed, with ten dollars costs and disbursements to the plaintiff.