Atcos Baths, Inc. v. Teperman

In an action by a corporation against an officer and a director for an accounting by reason of their alleged waste and malfeasance, and for other relief, the appeal is from an order denying appellants’ motion to dismiss the complaint for insufficiency or in the alternative to dismiss each cause of action alleged therein for insufficiency (Rules Civ. Prac., rule 106, subd. 4). Order modified by striking from the ordering paragraph everything following the word “ is ” and by substituting therefor the words “ granted to the extent of dismissing the first, twelfth and thirteenth causes of action, without affecting the allegations of the first cause of action incorporated by reference in the remaining causes of action, and in all other respects denied.” As so modified, order affirmed, without costs. In our opinion, the first, twelfth and thirteenth causes of action do not contain sufficient factual allegations to sustain a recovery against appellants. Moreover, the relief sought in the first cause of action is embraced within the relief sought in the remaining causes of action. Nolan, P. J., Wenzel, Beldock, Ughetta and Kleinfeld, JJ., concur.