Opinion
April 14, 1938.
Appeal from Supreme Court of New York County.
Michael H. Cardozo, Jr., of counsel [ Ralph S. Harris and Frederick W.R. Pride with him on the brief; Dwight, Harris, Koegel Caskey, attorneys, for the appellant Skouras] — [ Aristotle Souval with him on the brief; Cardozo Nathan, attorneys, for the appellants other than Skouras], for the appellants.
Alexander D. Diamond of counsel [ Abner J. Rubien and Alexander D. Diamond, attorneys], for the respondents.
Present — MARTIN, P.J., UNTERMYER, DORE, COHN and CALLAHAN, JJ.
Although we are of the opinion that the action cannot be maintained by the plaintiffs in a representative capacity, the motion to dismiss the complaint as not stating facts sufficient to constitute a cause of action must be denied for the reason that the plaintiffs have stated a cause of action "in their own behalf." The Court of Appeals so held in Brenner v. Title Guarantee Trust Co. ( 276 N.Y. 230), where the first question certified was answered in the affirmative.
The question, whether the action is maintainable in equity rather than at law, cannot be decided on this motion to dismiss the complaint. ( Abbey v. Wheeler, 170 N.Y. 122; Mitchell v. Thorne, 134 id. 536; Superior Brassiere Company, Inc., v. Zimetbaum, 214 App. Div. 525; Kraemer v. World Wide Trading Co., Inc., 195 id. 305; Gosselin Corp. v. Mario Tapparelli fu Pietro, Inc., 191 id. 580; affd., 229 N.Y. 596; Gillespie v. Montgomery, 93 App. Div. 403; Hotel Register Co. v. Osborne, 84 id. 307.)
The order should be affirmed, with twenty dollars costs and disbursements, with leave to the defendants-appellants to answer within twenty days after service of order with notice of entry, upon payment of said costs.
Order unanimously affirmed, with twenty dollars costs and disbursements, with leave to the defendants-appellants to answer within twenty days after service of order upon payment of said costs.