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ROBINS v. FINESTONE

308 N.Y. 543 (1955)

Louis D. Robins, Appellant, v. Edward O. Finestone, Respondent.

Court of Appeals of the State of New York.

Decided June 2, 1955

Attorney(s) appearing for the Case

Henry G. Littau, Julius Hallheimer and Abraham Heller for appellant.

Robert C. Heidell for respondent.

DESMOND, DYE, FROESSEL and BURKE, JJ., concur with CONWAY, Ch. J.; FULD and VAN VOORHIS, JJ., dissent and vote to affirm the determination made by the courts below upon the ground that the gravamen of the complaint is in malpractice, a cause of action concededly barred by the Statute of Limitations.

CONWAY, Ch. J.

The question presented is whether the complaint states a cause of action in contract. If it does, the action is not barred by the Statute of Limitations. If it states a cause of action in tort for malpractice, it is barred by the two-year Statute of Limitations. (Civ. Prac. Act, § 50, subd. 1.) On that ground defendant has moved to dismiss the complaint and we accept plaintiff's allegations...

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