Dura v. Walker, Hart & Co.

Appellate Division of the Supreme Court of New York

Dura v. Walker, Hart & Co.

32 A.D.2d 524, 298 N.Y.S.2d 1004, 1969 N.Y. App. Div. LEXIS 4133

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 24, 1969

StatusPublished

This text of 32 A.D.2d 524 (Dura v. Walker, Hart & Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dura v. Walker, Hart & Co., 32 A.D.2d 524, 298 N.Y.S.2d 1004, 1969 N.Y. App. Div. LEXIS 4133 (N.Y. Ct. App. 1969).

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Opinion

Order, entered October 28, 1968, unanimously modified, on the law and in the exercise of discretion, to provide that the plaintiff shall have 20 days from entry of order hereon to serve an amended complaint, and the order is otherwise affirmed, without costs and disbursements. There is a failure to state the “ material elements ” of plaintiff’s cause of action in that the allegations of the complaint are insufficient to properly plead an agreement with respect to the finder’s fee allegedly received by the defendant. (See CPLR 3013; cf. Foley v. D’Agostino, 21 A D 2d 60; Shapolsky v. Shapolsky, 22 A D 2d 91; Flamingo Telefilm Sales v. United Artists Corp., 22 A D 2d 778; Menon v. Kennedy, 24 A D 2d 849.) In this connection, the allegations of the complaint are but “ vaguely stated ” (see Shapolsky v. Shapolsky, supra, p. 92) and, in accordance with the suggestions made on the argument, it is concluded that, in the interests of justice, the plaintiff should serve an amended complaint. We do not reach the question of the application and effect of the 'Statute of Frauds (General Obligations Law, § 5-701, subd. 10) on the agreement which the plaintiff may eventually plead. (Concur—Eager, J. P., MeGivem, Markewich, Nunez and Steuer, JJ.

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Order, entered October 28, 1968, unanimously modified, on the law and in the exercise of discretion, to provide that the plaintiff shall have 20 days from entry of order hereon to serve an amended complaint, and the order is otherwise affirmed, without costs and disbursements. There is a failure to state the “ material elements ” of plaintiff’s cause of action in that the allegations of the complaint are insufficient to properly plead an agreement with respect to the finder’s fee allegedly received by the defendant. (See CPLR 3013; cf. Foley v. D’Agostino, 21 A D 2d 60; Shapolsky v. Shapolsky, 22 A D 2d 91; Flamingo Telefilm Sales v. United Artists Corp., 22 A D 2d 778; Menon v. Kennedy, 24 A D 2d 849.) In this connection, the allegations of the complaint are but “ vaguely stated ” (see Shapolsky v. Shapolsky, supra, p. 92) and, in accordance with the suggestions made on the argument, it is concluded that, in the interests of justice, the plaintiff should serve an amended complaint. We do not reach the question of the application and effect of the 'Statute of Frauds (General Obligations Law, § 5-701, subd. 10) on the agreement which the plaintiff may eventually plead. (Concur—Eager, J. P., MeGivem, Markewich, Nunez and Steuer, JJ.

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Bluebook (online)

32 A.D.2d 524, 298 N.Y.S.2d 1004, 1969 N.Y. App. Div. LEXIS 4133, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dura-v-walker-hart-co-nyappdiv-1969.

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