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Shipman v. Bennett

Court of Appeals of the State of New York
Apr 4, 1957
142 N.E.2d 428 (N.Y. 1957)

Opinion

Argued January 23, 1957

Decided April 4, 1957

Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, GEORGE EILPERIN, J., THOMAS E. MORRISSEY, JR., J.

Samuel Lawrence Brennglass and Gordon I. Novod for appellants.

Walter B. Bergner, in person, and Gerald Blum for Walter B. Bergner and others, respondents.


After examination of the various claims made by respondents, in this action to set aside a judgment on the ground of fraud, we conclude that the complaint — when construed liberally with a view to substantial justice between the parties — states a cause of action (Civ. Prac. Act, § 275; Morgenstern v. Cohon, 2 N.Y.2d 302; Dulberg v. Mock, 1 N.Y.2d 54, 56; Curren v. O'Connor, 304 N.Y. 515; Condon v. Associated Hosp. Service, 287 N.Y. 411, 414).

The judgment appealed from dismissing plaintiffs' complaint should be reversed, and the order of Special Term denying defendants' motion to dismiss should be affirmed, with costs. The appeal from the order reversing the order granting a stay should be dismissed, without costs, and without prejudice to plaintiffs' right to apply to the Supreme Court for a new stay pending determination of this action (Civ. Prac. Act, § 580; Matter of Marchant v. Mead-Morrison Mfg. Co., 252 N.Y. 284, 304; James v. Chalmers, 6 N.Y. 209; Bramley v. Miller, 243 App. Div. 220, 222 [same case 246 App. Div. 116, revd. 270 N.Y. 307]; Cohen and Karger, Powers of the New York Court of Appeals, § 79, p. 342).

CONWAY, Ch. J., DESMOND, DYE, FULD, FROESSEL, VAN VOORHIS and BURKE, JJ., concur.

On appeal from judgment: Judgment of Appellate Division reversed and order of Special Term reinstated, with costs in this court and in the Appellate Division.

On appeal from order: Appeal dismissed without prejudice to plaintiffs' right to apply to the Supreme Court for a new stay pending determination of this action.


Summaries of

Shipman v. Bennett

Court of Appeals of the State of New York
Apr 4, 1957
142 N.E.2d 428 (N.Y. 1957)
Case details for

Shipman v. Bennett

Case Details

Full title:WILLIAM G. SHIPMAN et al., Appellants, v. CHARLES H. BENNETT et al.…

Court:Court of Appeals of the State of New York

Date published: Apr 4, 1957

Citations

142 N.E.2d 428 (N.Y. 1957)
142 N.E.2d 428
162 N.Y.S.2d 364

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