Curren v. O\u27Connor, 304 N. Y. 515, 109 N. E. 2d 605 (1952)

Peard, Sally

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Buffalo Law Review Volume 3 Number 1 Article 19 12-1-1953 Civil Practice—Construction of Complaint Sally Peard Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview  Part of the Civil Procedure Commons Recommended Citation Sally Peard, Civil Practice—Construction of Complaint, 3 Buff. L. Rev. 71 (1953). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol3/iss1/19 This The Court of Appeals Term is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Law Review by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact lawscholar@buffalo.edu. THE COURT OF APPEALS, 1952-53 TERM"Doing Business" within the StateThe test to determine whether a foreign corporation is "do-ing business" -within the state to such an extent as to be amenableto process, is that the corporation be "here with a fair measureof permanence and continuity."'  This test, formulated by Car-dozo and derived from the United States Supreme Court,6 has beenfollowed by the Court of Appeals.7In Elish v. St. Louis Southwestern Ry. Co.,' the Court of Ap-peals again applied this test. A Missouri corporation, althoughnot qualified to do business within the state, had an office in NewYork City and Buffalo to solicit freight. It also maintained aseparate New York City office, listed as one of the corporation'sthree general offices, which conducted fiscal business and was thelocation for one of the corporation's four annual board of direc-tor's meetings. The corporation argued that its only businesswithin the state was solicitation, which alone is insufficient for theNew York courts to acquire jurisdiction.9 The court held, how-ever, that solicitation plus other business activities conducted inthis state renders the corporation "here" and therefore amenableto process.Construction of ComplaintUnder Civil Practice Act § 275, pleadings must be liberallyconstrued. If the defendant moves under Civil Practice Rule 106to dismiss the complaint on the grounds that it is legally insuffi-cient, the complaint will not be dismissed if in any aspect of thefacts stated, the plaintiff is entitled to recovery. Every inferenceis in favor of the pleading.10In the recent case of Curren v. O'Connor," these principlesof law were applied by the court. Plaintiffs, social guests ofdefendants, brought an action for personal injuries and loss ofservices, charging the defendants with negligence. Defendantsmoved under Rule 106 to dismiss the complaint, challenging itslegal sufficiency. The Appellate Division, reversing Special Term,granted the motion because the plaintiffs, as social guests of thedefendants could not recover.5. Tauza v. Susquehanna Coal Co., 220 N. Y. 259, 268, 115 N. E. 915, 918 (1917).6. International Harvester v. Kentucky, 234 U. S. 579 (1914).7. Chaplin v. Selznick, 293 N. Y. 529, 58 N. E. 2d 719 (1944.) ; Sterling Vcv LtyCorp. v. Frank & Hirsch Distributing Co., 299 N. Y. 208, 86 N. E. 2d 564 (1949).8. 305 N. Y. 267, 112 N. E. 2d 842 (1953).9. Yeckes-Eichebawn, Inc. v. McCarthy, 290 N. Y. 437, 49 N. E. 2d 517 (1943).10. Dyer v. Broadway Central Bank, 252 N. Y. 430, 16Q N. E. 635 (1930);Potnerance v. Poanerance, 301 N. Y. 254, 93 N. E. 2d 832 (1950).11. 304 N. Y. 515, 109 N. E. 2d 605 (1952).BUFFALO LAW REVIEWThe Court of Appeals reversed the ruling of the AppellateDivision, stating the court's liberal view toward the sufficiencyof complaints, particularly in negligence actions, in at least per-mitting the parties to go to trial where the plaintiffs, under otherallegations in the complaint, may be able to submit evidenceentitling them to recover,12 and no bill of particulars is involved.Couterclaim in Suit by PartnershipAction was brought by a partnership composed of two generaland two limited partners against its former attorney, who hadbeen discharged for cause. Defendant attorney set up a counter-claim against one general and one limited partner, as individuals,for damages resulting from their conspiracy to destroy his pro-fessional standing. The counterclaim was held improper becauseunder C. P. A. § 266 the claim and counterclaim must be betweenthe same parties. 13The interesting aspect of the case is the statement of the courtthat for the purposes of pleading, the partnership is to be regardedas a legal entity.14 The court strengthens its position by referringto 0. P. A. § 222-a (two or more persons carrying on business aspartners may sue- or be sued in their partnership name), and thecommentary of the Judicial Council in proposing the enactment ofthis section, which stated that the old common law concept of thepartnership as simply a group of individuals, for purposes ofpleading, is undesirable."3Although C. P. A. § 266 liberalized the practice relating tocounterclaims, defining a counterclaim as any cause of action infavor of the defendants against the plaintiffs, or some of them, thesection did not change the rule that the counterclaim must be byand against the same party in the same capacity.'6The court, in the instant case, combines the above two tenetsto conclude that the partnership sues as an entity and the counter-claim must be against that entity, not the individual partners. Itwould seem that the court, by its reasoning, has deftly evaded theplain meaning of C. P. A. § 266.12. Higgins v. Mason, 255 N. Y. 104, 174 N. E. 77 (1930); Faber v. Meiler, 278App. Div. 849, 104 N. Y. S. 2d 485 (2d Dep't 1951).13. Ruzicka v. Roger, 305 N. Y. 191, 111 N. E. 2d 878 (1953).14. Id. at 197. 111 N. E. 2d 881.15. Eleventh Annual Report of N. Y. Judicial Council, pp. 221, 224-225 (1945).16. U. S. Trust Co. of .N. Y. v. Stanton, 139 N. Y. 531, 34 N. E. 1098 (1893);Binon v. Boel, 297 N. Y. 528, 74 N. E. 2d 466 (1947) ; Select Theatres Corp. v. Haris,Inc., 273 App. Div. 505, 78 N. Y. S. 2d 159 (1st Dep't 1948).72

Civil Practice—Construction of Complaint

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Civil Practice—Construction of Complaint

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