Opinion
May 13, 1958
The order dated June 15, 1956, should be modified on the law to the extent of deleting therefrom leave to replead as to the second, third and fourth causes of action, and dismissing the fifth and sixth causes of action, with leave to replead only as to the sixth cause of action. We are of the opinion that the second and fourth causes of action are not available to a simple contract creditor ( Skilton v. Codington, 185 N.Y. 80, 86); that the second to fifth, inclusive, causes of action are not, on the facts alleged, available to the plaintiff, particularly in the light of the allegation contained in paragraph "27" of the complaint that an involuntary petition in bankruptcy was filed against Basile Shipping Company, Inc. The sixth cause of action fails to allege ultimate facts to support a cause of action in fraud or prima facie tort. The said order is otherwise affirmed, with $20 costs and disbursements to the defendant-appellant-respondent. The order of November 29, 1956, denying reargument, is not appealable and the appeal therefrom is accordingly dismissed, with $20 costs and disbursements to plaintiff-respondent-appellant. ( Kelly v. Vania Cab Corp., 1 A.D.2d 803.) Settle order.
Concur — Breitel, J.P., Rabin, McNally and Stevens, JJ.