Baetich v. Levine , 2 A.D.2d 985 ( 1956 )

In an action against the sole stockholder of a corporation and his attorney to recover damages arising out of a contract between said stockholder and the plaintiff for the sale to her of one third of the stock of the corporation, the appeal is from an order vacating a preference in trial granted by the calendar clerk pursuant to rule 6 of the Queens County Supreme Court Rules, Trial Terms. Order affirmed, with one bill of $10 costs and disbursements. In view of the relationship alleged to have existed between appellant and respondent Segaloek, appellant had a choice of remedies against Segaloek, if injured by his negligence in the performance of his duties as her attorney, to sue either in contract or in tort. An examination of her complaint leads to the conclusion that in the eighth cause of action pleaded appellant has elected to pursue her remedy by an action in tort, based on Segalock’s alleged negligence. Consequently, a preference was not authorized by the provisions of the rule invoked. Nolan, P. J., Wenzel, Beldock, Ughetta and Kleinfeld, JJ., concur.