Kramp v. Fairchester Packing Co.

275 A.D.2d 1067

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 5, 1949
• Status: Published

Opinion

Memorandum : The complaint contains two causes of action, the first aEeges a contract to purchase certain tomatoes on September 15, 1948, and the second a similar contract on September 19,: 1948. . The original biE of particulars sets forth an oral agreement made between the parties for the purchase by the defendant, from the plaintiff on September 15, 1948, and partial deHvery and acceptance by the defendant. In plaintiff’s affidavit, it is stated that the date in the biE of particulars was an error and should have been August 5, 1948. The order appealed from denies. defendant’s motion to dismiss the second cause of action and permits plaintiff to serve an amended bül of particulars. We do not think that any amendment to the bül of particulars will cure the defect in the complaint. If there was but one contract and there has been sufficient performance and acceptance to take it out of the Statute of Frauds, the complaint should so allege. AE concur. (The order denies defendant’s motion to dismiss plaintiff’s second cause of action, and permits plaintiff to serve an amended bül of particulars.) Present — Taylor, P. J., McCurn, Love, KimbaE and Piper, JJ.