Pilinko v. Merlau

Order reversed, without costs of this appeal to either party, and motion granted, without costs, with leave to plaintiff to file an amended complaint within 20 days after service of a copy of the order herein. Memorandum: The complaint is based on alternative theories of negligence, one of which is conceded to be without merit. It is well settled that unless such a pleading is good as to both alternatives it must be dismissed as insufficient. (Potter v. Gilbert, 130 App. Div. 632, affd. 196 N. Y. 576; Johansson v. Kemp, 211 App. Div. 276.) All concur. (Appeal from an order of Erie Special Term denying a motion by defendant Insurance Co. for a dismissal of the complaint pursuant to rule 106 of the Rules of Civil Practice.) Present—McCurn, P. J., Williams, Bastow, Goldman and Halpern, JJ. [10 Misc 2d 63.]