Unity Sheet Metal Works, Inc. v. Knappen , 279 A.D. 245 ( 1951 )

Per Curiam.

A report to a principal by agents such as defendants-appellants, engineers employed by the lessee of a pier to act as the lessee’s representatives and overseers during the performance of construction work, is privileged as against a claim by a third person such as this plaintiff, a subcontractor, having no contractual relationship with either the lessee, or the engineers (Greyhound Corp. v. Commercial Cas. Ins. Co., 259 App. Div. 317).

The complaint does not allege that plaintiff complied with the terms of its own subcontract or duly performed all the terms and conditions on its part to be performed.

The complaint also fails to allege disclosed material facts as distinguished from general and conclusory allegations of wrongdoing on defendants’ part. There is no allegation that appellants acted contrary to the interests of their principal. Nor is there sufficient allegation of misrepresentations of material facts to state a cause of action for fraud. (Gerdes v. Reynolds, 281 N. Y. 180.)

The second cause of action asserting a conspiracy is equally defective as it asserts no additional factual basis of liability.

The complaint seems to be based on undisclosed facts which must be disclosed before plaintiff may state any cause of action-

The order appealed from should be reversed, with $20 costs and disbursements to defendants-appellants and the complaint dismissed, with leave to plaintiff if so advised to replead.

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Glennon, J. P., Does, Cohn and Callahan, JJ., concur; Shientag, J., dissents and votes to affirm on authority of Advance Music Corp. v. American Tobacco Co. (296 N. Y. 79).

Order reversed, with $20 costs and disbursements to appellants and the complaint dismissed, with leave to the plaintiff, if so advised, to replead. Settle order on notice.