Somberg v. Somberg

Both the plaintiff, appellant, and the defendants, respondents, rely upon the decision of the Court of Appeals in Baumann v. Baumann (250 N. Y. 382), the plaintiff contending that her complaint is sufficient within the purview of that decision, the defendants contending that it is insufficient. We are of opinion that some of the allegations of the complaint are sufficient to entitle the plaintiff to some relief under the authority cited. In *724addition to it being alleged that plaintiff’s property rights are involved and have been affected, it is charged that the defendant Rose Baskind, also known as Rose Somberg, “ is impersonating this plaintiff,” and that a large part of the public believe that said defendant “ is the plaintiff and is the lawful wedded wife of the defendant, Joseph S. Somberg.” In the Baumann case there was an absence of any proof that the defendant Ray Starr Einstein was impersonating the plaintiff.

Here, also, we have the allegation that the defendants “ have ' informed everybody that the said 'Judith Gail Somberg [also defendant] is the lawful child of a marriage between the said Joseph S.. Somberg and the said Rose Baskind, also known as Rose Somberg.” It is to be observed that we are concerned here only with the sufficiency of the pleading. With the ultimate relief, if any, to which the plaintiff will be entitled, we are not now concerned.

It follows, therefore, that the orders appealed from should be reversed, with twenty dollars costs and disbursements, and each motion denied, with ten dollars costs, with leave to defendants to answer wdthin twenty days from service of order, upon payment of said costs.

Finch, P. J., and Glennon, J., concur; Merrell and Martin, JJ., dissent and vote for affirmance on the authority of Baumann v. Baumann (250 N. Y. 382).

Orders reversed, with twenty dollars costs and disbursements, and each motion denied, with ten dollars costs, with leave to the defendants to answer within twenty days from service of order upon payment of said costs.