Regnell v. Page

Order, Supreme Court, New York County, entered May 20, 1975, unanimously reversed, on the law, the motion to dismiss the second and fifth causes of action stated in the complaint granted, and the attachment based thereon vacated. Appellants shall recover of respondents $60 costs and disbursements of this appeal. Appeal from order of the same Justice, entered August 26, 1974, dismissed as academic, without costs and without disbursements, it having been superseded by grant of renewal and adherence to the original decision, as set forth in the order of May 20, 1975. The first and fourth causes of the complaint, covering different periods of time, pleaded a collective bargaining agreement of the parties, allegedly violated by underpayments of amounts due for contribution to a welfare and pension fund. The second and fifth causes, restating the breaches by underpayment, attack the reports of contributions due as fraudulently made, and it was upon the allegations of fraud that attachment issued. "The only fraud charged relates to a breach of the contract and not to its inducement or making. The fraudulent breach of a contract does not give rise to an action for fraud. (Brick v. Cohn-Hall-Marz Co., 276 N. Y. 259.)” (Drydock Knitting Mills v Queens Mach. Corp., 254 App Div 568, 569.) The motion to dismiss should have been granted. Concur—Markewich, J. P., Murphy, Birns, Silverman and Capozzoli, JJ. [82 Mise 2d 506.]