Shipman v. Bennett

Per Curiam. 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, Yan Yoorhis 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.