Zaepfel v. Parnass

Upon a motion to dismiss the complaint, such as is here under consideration, the sole question to be considered is whether the allegations of the complaint state facts sufficient to constitute a cause of action. The allegations are taken as admitted. (Tracey v. Sullivan, 131 Misc. 553; Baumann v. Baumann, 222 App. Div. 460.) Liberal construction is given to the complaint. (Bown v. Ramsdell, 227 App. Div. 224.) Every intendment and fair inference must be drawn from the facts stated. If the plaintiff is entitled to recover on any theory on the facts in the complaint, the motion must be denied.…