Edward R. Broderick et al., Respondents, v. Lemkau-Kidd Corporation, Appellant

Edward R. Broderick et al., Respondents, v. Lemkau-Kidd Corporation, Appellant. First Department, November 12, 1943. James L. Goldwater of counsel (Emanuel Bund with him on the brief; Goldwater & Flynn of counsel; Lind S Maries, attorneys), for appellant. Julius L. Goldstein of counsel (Max Wolofsley, attorney), for respondents. [MAJORITY — Per Curiam.] Per Curiam. Under rule 106, Buies of Civil Practice, defendant moved to dismiss the complaint for insufficiency on the ground that the complaint failed to allege facts showing that the Fair Labor Standards Act of 1938 (U. S. Code, tit. 29, § 201 et seq.) applies. The essential allegation that the parties are engaged in interstate commerce is a general conclusory statement without any allegation of facts from which the court may determine whether the parties were in fact so engaged. The order appealed from should be reversed, with twenty dollars costs and disbursements, and the motion to dismiss the complaint granted, with leave to serve an amended complaint within ten days after the service of a copy of the order to be entered herein, upon payment of said costs. Martin, P. J., Townley, Glennon, Untermyer and Dore, JJ., concur. Order unanimously reversed, with twenty dollars costs and disbursements, and the motion to dismiss the complaint granted, with leave to serve an amended complaint within ten days after service of a copy of order upon payment of said costs.