Hearn 45 St. Corp. v. Jano

Order granting defendants’ motion to dismiss the complaint under rule 107, subdivision 6 of the Rules of Civil Practice, and judgment entered thereon dismissing the complaint, unanimously affirmed, with ten dollars costs and disbursements. The complaint sets up alleged instances of actual fraud occurring more than six years prior to the date of the commencement of the action. Section 48, subdivision 5, of the Civil Practice Act, is a bar. The eases upon which plaintiff relies and which applied section 53 of the Civil Practice Act, concern alleged instances of constructive fraud where the acts of alleged fiduciaries are involved. Present —■ Lazansky, P. J., Carswell, Johnston, Adel and Close, JJ.