Kaufman v. Sweigard

Order entered on September 19, 1966, granting defendant Guilden’s motion to dismiss the third and fourth causes of action contained in the complaint herein for legal insufficiency, unanimously reversed, on the law and on the facts, with $50 costs and disbursements to appellant, and motion denied. “ We are not unmindful of the fact that this complaint is not artfully pleaded 5 * *. However, if 1 in any aspect upon the facts stated [the plaintiff is] entitled to recovery’ (Abrams v. Allen, 297 N. Y. 52, 54); a motion to dismiss for insufficiency must be denied [citing case] ” (Kaminsky v. Kahn, 13 A D 2d 143, 146). Upon a motion made pursuant to CPLR 3211 (subd. [a], par. 7), the function of the court is to “look to the substance rather than the form” (Foley v. D’Agostino, 21 A D 2d 60, 64). It follows, therefore, that the third cause of action Sufficiently states a claim for Guilden’s intentional and deceitful inducement of Sweigard to breach his contract with plaintiff (Goodman v. Kirkeby, 282 App. Div. 86, 89, mot. for lv. to app. den. 306 N. Y. 981), and that the fourth cause of action sufficiently alleges an illegal conspiracy between the two defendants to deprive the plaintiff of his commissions. (Hornstein v. Podwitz, 254 N. Y. 443.) Concur—Stevens, J. P., Steuer, Capozzoli, McNally and Witmer, JJ.