Marinello v. Iozzo

In an action in which the amended complaint purports to set forth causes of action for conspiracy to injure plaintiff and for fraud, plaintiff appeals from an order of the Supreme Court. Westchester County, entered January 14, 1965, which inter alia granted the motions of defendants-respondents to dismiss the two causes of action for insufficiency (CPLR 3211, subd. [a], par. 7). Order modified by adding a fifth decretal paragraph to the effect that the granting of the motions is without prejudice to the commencement by plaintiff, if he be so advised, of a new action solely as against the defendant David Gilberg for recovery of the $100 fee received by said defendant. As so modified, order affirmed, without costs. It appears that plaintiff might have a cause of action against defendant Gilberg based on the latter’s failure to appear in court in the criminal prosecution against the defendant Michael Frieary on the day that such prosecution was dismissed. Plaintiff had retained Gilberg as his attorney in that prosecution and had paid him $100. Christ, Acting P. J., Brennan, Rabin, Hopkins and Benjamin, JJ., concur.