Glahn v. Clark

251 A.D. 747, 296 N.Y.S. 131, 1937 N.Y. App. Div. LEXIS 7354

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 28, 1937
• Status: Published

Opinion

In an action to recover damages for breach of contract, order denying defendant’s motion (Rules Civ. Prae. rule 106, subd. 5) to dismiss the complaint upon the ground that it does not state facts sufficient to constitute a cause of action reversed on the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. The terms of the writing dated December 13, 1929, signed by appellant, which letter the respondent in his brief asserts is the contract between, the parties, determined their rights notwithstanding the allegations of the com-! plaint which purport to construe and even amplify those terms. (Sonino v. Magrini, 225 App. Div. 536, 539, and eases cited.) As matter of law, the promisej of the defendant contained in the writing was gratuitous and without consideration. The detriment claimed to have been suffered by the plaintiff because of, his refraining from selling his stock in New York Investors, Inc., before the end, of the period mentioned in the writing, does not furnish such consideration. That detriment was not requested by the defendant promisor. (Allegheny Col. v. Nat. Chautauqua Co. Bank, 246 N. Y. 369, 373; Wisconsin & Michigan R. Co. v. Powers, 191 U. S. 379, 386.) Defendant’s motive in making his promise, based! upon his desire that plaintiff should not suffer because of defendant’s advice to purchase the stock, likewise does not constitute valid consideration. (Pershall v. Elliott, 249 N. Y. 183, 188; Williston on Contracts, § 111.) There was no' contract. Lazansky, P. J., Carswell, Johnston, Taylor and Close, JJ., concur.