Peller v. Katz

Defendant Schwartz moves, under rule 106 of the Rules of Civil Practice, to dismiss plaintiff’s complaint upon the grounds 1) that same fails to state facts sufficient to constitute a cause of action and 2) that plaintiff lacks legal capacity to sue.

Plaintiff is a residuary beneficiary under the will of her late father. The defendants are her two brothers who are sued individually and as executors of her father’s estate; a corporation in which decedent allegedly had a one-half stock interest, and the moving defendant, Schwartz. The complaint, in the first cause of action, inter alia, alleges…