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ESCOETT & COMPANY v. ALEXANDER & ALEXANDER (02/03/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT


February 3, 1969

ESCOETT & COMPANY, APPELLANT,
v.
ALEXANDER & ALEXANDER, INC., RESPONDENT

Concur -- Stevens, P. J., Eager, Capozzoli, McGivern and Nunez, JJ.

The counterclaim, insofar as it purports to be grounded in libel or slander, is legally insufficient, as it fails to set forth the particular words complained of. (CPLR 3016; Brandt v. Winchell, 3 N.Y.2d 628, 636.) Nor can the counterclaim be sustained as pleading a cause of action in fraud since none of the traditional elements of such an action is alleged. Defendant does not claim that it was deceived or induced into acting to its detriment, in reliance upon representations made by the plaintiff. The representations of which the defendant complains were made to third parties and not to it, and those representations were relied upon by those third parties and not by it.

Disposition

Order, entered on October 15, 1968, insofar as it denied plaintiff's motion to dismiss to the defendant's counterclaim, unanimously reversed on the law and motion granted, with $50 costs and disbursements to plaintiff-appellant.

19690203

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