Brown v. Kahanick , 3 A.D.2d 825 ( 1957 )

Peck, P. J.

(dissenting). I hesitate to say that a complaint, which seems to be understandable to my brethren, is unintelligible to me, but I must confess that to be the fact in this case. At least I can agree with Justice Botein that “Nowhere are there any allegations of ultimate fact that would sustain a finding that the contract was a device to avoid the usury law. Only conclusions to that effect are pleaded.”

1 vote to dismiss the complaint as insufficient, with leave to replead.

Breitel, Prank and Valente, JJ., concur in decision; Peek, P. J., dissents and votes to dismiss with leave to replead in opinion; Botein, J., dissents and votes to reverse and dismiss in opinion.

Order affirmed, with $20 costs and disbursements to the respondent.