Supreme Specialty Manufacturing Co., Inc., Appellant, v. Adolf F. DeMuth, Henry Behrend and Others, Respondents

Supreme Specialty Manufacturing Co., Inc., Appellant, v. Adolf F. DeMuth, Henry Behrend and Others, Respondents. Pleadings — complaint — sufficiency as to one defendant — complaint does not state facts showing conspiracy. Appeal from an order of the Supreme Court, made at the New York Special Term and entered in the New York county clerk’s office on December 3, 1926, granting the motion of the defendant Adolf F. DeMuth, under rule 106 of the Rules of Civil Practice, for judgment dismissing the complaint upon the ground that the same does not state facts sufficient to constitute a cause of action, and directing, under rule 102 of the Rules of Civil Practice, that the causes of action on the agreements referred to in the so-called first cause of action should be separately stated and numbered, with leave to serve an amended complaint as therein specified, and also from an order entered on the same day granting a motion of the defendants Behrend and others, under rule 106 of the Rules of Civil Practice, for judgment dismissing the complaint upon the ground that the same does not state facts sufficient to constitute a cause of action. [MAJORITY — Per Curiam.] Per Curiam. The complaint states three good causes of action against the defendant DeMuth, but fails adequately to state any cause of action against the other defendants, because plaintiff has not alleged that the other defendants had knowledge of DeMuth’s improper conduct. Moreover, it fails to state the facts from which the legal conclusion of a conspiracy may be inferred. The order granting the motion to dismiss the complaint as to the defendant DeMuth should be reversed, with ten dollars costs and disbursements to the appellant, and the motion denied, with ten dollars costs, with leave to said defendant to answer within twenty days from service of order upon payment of said costs. The order granting motion to dismiss the complaint as to the other defendants should be modified so as to grant leave to serve an amended complaint, and as so modified affirmed, without costs of this appeal, and with leave to plaintiff to serve an amended complaint within twenty days from service of order upon payment of ten dollars costs awarded to the defendants Behrend, Gehrt and Hansa Color Co., Inc., by the order appealed from. Present —■ Dowling, P. J., Merrell, Finch, McAvoy and Proskauer, JJ. First order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, with leave to the defendant Adolf F. DeMuth to answer within twenty days from service of order upon payment of said costs. Second order modified so as to grant leave to serve an amended complaint, and as so modified affirmed, without costs of this appeal, and with leave to plaintiff to serve an amended complaint within twenty days from service of order upon payment of ten dollars costs awarded to the defendants Henry Behrend, Rudy Gehrt and Hansa Color Co., Inc., by the order appealed from.