Opinion
March 11, 1957
Action consisting of causes based on fraud and breach of contract to recover damages allegedly resulting from misrepresentation of the financial condition of a corporation, in consequence of which a contract for the sale of stock was sold at less than actual value. The order appealed from denies a motion to dismiss (1) the first and fifth causes for insufficiency, and (2) the third and fourth causes as not accruing within the time limited by law for commencement of actions thereon. Order modified by striking therefrom the ordering paragraph and by providing in lieu thereof that the motion be granted to the extent of dismissing the first, third and fifth causes of action and be denied as to the fourth cause of action. As so modified, order affirmed, with $25 costs and disbursements to appellant. The first and fifth causes are insufficient in that no allegations of scienter are therein included. The third cause is cast as one for breach of contract and is insufficient, in any event, as one based on fraud. It is barred under subdivision 1 of section 48 of the Civil Practice Act. The fourth cause is predicated on fraud and was timely brought (Civ. Prac. Act, § 48, subd. 5). Wenzel, Acting P.J., Murphy, Ughetta, Hallinan and Kleinfeld, JJ., concur.