Battista v. Potofsky (13 A.D.2d 992, 1961)

In an action against an unincorporated association, to recover damages for fraud, the defendant appeals from an order of the Supreme Court, Orange County, dated October 3, 1960, which denied his motion to dismiss the complaint for insufficiency, pursuant to rule 106 of the Rules of Civil Practice. Order reversed, with $10 costs and disbursements, motion granted, and complaint dismissed, with leave to plaintiffs, if so advised, to serve an amended complaint within 20 days after entry of the order hereon. As against defendant in his representative capacity, the allegations of the complaint are insufficient to show that the fraud complained of was authorized or ratified by the members of the union, an unincorporated association (Martin v. Curran, 303 N. Y. 276). Beldock, Ughetta and Brennan, JJ., concur; Nolan, P. J., and Christ, J., concur on the ground stated and on the additional ground that no actionable fraud is pleaded in the present complaint,