McMorrow v. Joyce

231 A.D. 738

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1930
• Status: Published

Opinion

Order granting defendant’s motion to strike out certain paragraphs of the second amended complaint reversed upon the law and the facts, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, with leave to defendant to answer within ten days from service of a copy of the order herein. The allegations stricken out are not irrelevant and are needful to enable it to be determined upon a trial whether plaintiff has a cause of action for the specific performance of an enforcible contract which it would be equitable to require that defendant should specifically perform, or has a cause of action independently of the Statute of Frauds, the rights under which he would be equitably entitled to have enforced. Wadick v. Mace (191 N. Y. 1), in so far as it is an authority on the non-enforeibility of a contract involving an indefinite description, may be distinguished from the case at bar in view of the indefiniteness ceasing to be present in the case at bar before the law day, if the plaintiff’s evidence to that effect be credited. Lazansky, P. J., Rich, Kapper, Hagarty and Carswell, JJ., concur.