Allied Chemical Corp. v. Ruskin

39 A.D.2d 881, 333 N.Y.S.2d 436, 1972 N.Y. App. Div. LEXIS 4213

Opinion

Order, Supreme Court, New York County, entered January 21, 1972, granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for like relief, unanimously reversed, on the law, the motion denied, the cross motion granted, and the judgment entered thereon on February 1, 1972, vacated, without prejudice. Appellant shall recover of respondent $50 costs and disbursements of this appeal. The guarantee was delivered in consideration of future sales. The absence of such future sales constitutes a failure of consideration barring recovery on the guarantee. (Standard Oil Co. v. Koch, 260 N. Y. 150.) The dismissal, however, is without prejudice in the event plaintiff has a cause of action not asserted in the pleadings. (See CPLR 205.) Concur — Markewieh, J. P., Murphy, McNally, Tilzer and Eager, JJ.