Neco Distributors Corp. v. Wilkoff

Appellate Division of the Supreme Court of New York

Neco Distributors Corp. v. Wilkoff

7 A.D.2d 903, 182 N.Y.S.2d 411, 1959 N.Y. App. Div. LEXIS 9894

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

DecidedFebruary 17, 1959

StatusPublished

This text of 7 A.D.2d 903 (Neco Distributors Corp. v. Wilkoff) 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

Neco Distributors Corp. v. Wilkoff, 7 A.D.2d 903, 182 N.Y.S.2d 411, 1959 N.Y. App. Div. LEXIS 9894 (N.Y. Ct. App. 1959).

Pincite

Opinion

Order denying defendant’s motion for judgment on the pleadings unanimously reversed, on the law, and the motion granted, with costs to appellant, with leave, in the exercise of discretion, to plaintiff to replead. The complaint, inartful in its allegations, sets forth an executory accord which, from the evidentiary allegations, would appear to lack a writing to evidence it. As such, it would be insufficient (Personal Property Law, § 33-a). However, plaintiff should be afforded the opportunity of pleading a [904]*904cause of action based on the precedent agreement if, in fact, the accord is unenforeible; and, perhaps, also to replead a cause of action based on the accord, if he is in a position to allege one that would be sufficient under the statutes. Moreover, if, as plaintiff contends in its brief in this court, it relies upon a substituted agreement, as distinguished from an accord, it should plead such in proper form (Blair é Co. v. Otto V., 5 A D 2d 276; cf. Goldbard V. Empire State Ins. Co., 5 A D 2d 230). Concur—Botein, P. J., Breitel, M. M. Frank, McNally and Stevens, JJ.

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Order denying defendant’s motion for judgment on the pleadings unanimously reversed, on the law, and the motion granted, with costs to appellant, with leave, in the exercise of discretion, to plaintiff to replead. The complaint, inartful in its allegations, sets forth an executory accord which, from the evidentiary allegations, would appear to lack a writing to evidence it. As such, it would be insufficient (Personal Property Law, § 33-a). However, plaintiff should be afforded the opportunity of pleading a [904]*904cause of action based on the precedent agreement if, in fact, the accord is unenforeible; and, perhaps, also to replead a cause of action based on the accord, if he is in a position to allege one that would be sufficient under the statutes. Moreover, if, as plaintiff contends in its brief in this court, it relies upon a substituted agreement, as distinguished from an accord, it should plead such in proper form (Blair é Co. v. Otto V., 5 A D 2d 276; cf. Goldbard V. Empire State Ins. Co., 5 A D 2d 230). Concur—Botein, P. J., Breitel, M. M. Frank, McNally and Stevens, JJ.

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Bluebook (online)

7 A.D.2d 903, 182 N.Y.S.2d 411, 1959 N.Y. App. Div. LEXIS 9894, Counsel Stack Legal Research, https://law.counselstack.com/opinion/neco-distributors-corp-v-wilkoff-nyappdiv-1959.