John A. Severino Et Al. v. Salisbury Point Cooperatives

In an action to recover damages for an alleged breach of contract and conversion, and for other relief, defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County, dated February 20, 1964: (a) as denied their motion, pursuant to statute (CPLR 3211, subd. [ a ] , par. 7), to dismiss for insufficiency the second and third causes of action alleged in the amended complaint; and (b) as granted plaintiffs' motion for a temporary injunction. Order, insofar as appealed from, affirmed, without costs. The temporary injunction was vacated by the Special Term subsequent to the taking of the appeal, and hence the portion of the appeal relating to such injunction has become moot. In our opinion, thee second cause of action for conversion of the stock of one of the defendant corporations, allegedly owned by plaintiffs, and the third cause of action for an injunction to restrain the sale of said stock, sufficiently plead the material factual elements of each such cause of action, within the purview of CPLR 3013. This statute is to be liberally construed (CPLR 104); and technical defects in the complaint may be ignored where, as here, a substantial right of the defendants is not prejudiced (CPLR 3026; cf. Foley v. D'Agostino, 21 A.D.2d 60). The pleading of inconsistent theories did not render the causes of action insufficient (CPLR 601, 3014; cf. Vendall, Inc. v. Statler Mfg. Corp., 5 A.D.2d 882; Ancelmo Trucking Co. v. Durkee, 11 A.D.2d 836). Ughetta, Acting P.J., Kleinfeld, Brennan, Hill and Hopkins, JJ., concur.