Steele v. Tool Chaft Corp.

We find the first, second, third and fifth causes of action as presently pleaded sufficient to withstand the .test of a motion to dismiss. It is not necessary to consider the fourth cause of action because that is against a defendant who was not served, did not appear and made no motion to dismiss. Accordingly the fourth cause of action should not have been dismissed.

*990The order appealed from, insofar as it denied defendants’ motion to dismiss the fifth cause of action should be 'affirmed, and, insofar as it granted defendants’ motion to dismiss the first four causes of action, should be reversed, with twenty dollars costs and disbursements to the plaintiffs, and the motion in all respect^ denied.

Present — Townley, UntermyeT, Dore, Cohn and Callahan, JJ.

Order, insofar as it denied defendants’ motion to dismiss the fifth cause of action, unanimously affirmed, and, insofar as it granted defendants’ motion to dismiss the first four causes of action, reversed, with twenty dollars costs and disbursements to the plaintiffs, and the motion in all respects denied. -