Swall v. Derschug

Per Curiam. The first cause of action easily divides itself into two parts. The part relating to the concerted action contained in paragraphs numbered “ fourth,” “ fifth ” and “ sixth ” sets forth a scheme to procure the sale by the defendant and certain unknown persons connected with him of stock at inflated prices, with misrepresentations to accomplish the purpose of the scheme. The plaintiff fails to show that he is one of the class to which the representations were intended to be addressed as he is not alleged to have purchased stock either from the defendant or from those associated with him in the scheme. The allegations in relation to such scheme are, therefore, irrelevant. (Greene v. Mercantile Trust Co., 60 Misc. 189; affd., 128 App. Div. 914; Cheney v. Dickinson, 172 Fed. 109; Nash v. Minnesota Title Ins. & Trust Co., 159 Mass. 437; Hunnewell v. Duxbury, 154 id. 286, 288; Peek v. Gurney, 6 Eng. & Ir. App. 377.) As to the “ second,” “ third ” and “ fourth ” separate causes of action set forth in the complaint, we read the repetition and reallegation of the facts of intention on defendant’s part that the false [388] representations should be relied upon as meaning that the false representations should be relied on at the time of the plaintiff’s purchases of stock set forth in the respective counts of the complaint. Therefore, in our opinion the separate counts are sufficient as matter of pleading. The order should be reversed in so far as it denies the motion to strike out paragraphs numbered “ fourth,” “ fifth ” and “ sixth ” in the first cause of action alleged in the complaint, and the same paragraphs as repeated in “ II,” “ III ” and “ IV ” separate causes of action, and otherwise affirmed, and the motion should be granted in so far as it concerns paragraphs “ fourth,” “ fifth ” and “ sixth ” in the first alleged cause of action and as repeated in the “ II,” “ III ” and “ IV ” separate causes of action, without costs. All concur, except Thompson, J., who dissents and votes for affirmance; Taylor, J., not sitting. Order reversed on the law in so far as it denies the motion to strike out paragraphs numbered fourth, fifth and sixth in the first cause of action alleged in the complaint, and the same paragraphs as realleged in the II, III and IV separate causes of action, and otherwise affirmed, and motion granted in so far as it concerns the paragraphs named, without costs of this appeal to either party.