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BRIGHAM v. McCABE

27 A.D.2d 100 (1966)

Albert S. Brigham, Appellant, v. Frank W. McCabe et al., Respondents

Appellate Division of the Supreme Court of the State of New York, Third Department.

December 30, 1966.

Attorney(s) appearing for the Case

Milton Paulson and Ralph W. Lawrence for appellant.

O'Connell & Aronowitz (Samuel E. Aronowitz and George Myers of counsel), for National Commercial Bank & Trust Co., respondent.

Charles A. Brind and John P. Jehu for New York State Teachers' Retirement System and others, respondents.

HERLIHY, REYNOLDS, AULISI and BRINK, JJ., concur; GIBSON, P. J., not voting.

Per Curiam.

This is an appeal by the plaintiff from orders and judgments dismissing his complaint for failure to state a cause of action (CPLR 3211, subd. [a]).

For the purpose of such a motion to dismiss for failure to state a cause of action, the allegations of the pleading attacked are to be taken as true. However, pursuant to CPLR 3211 (subd. [c]), the parties may submit evidence as on a motion for summary...

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