Pennington v. Ziman

13 A.D.2d 769, 216 N.Y.S.2d 1, 1961 N.Y. App. Div. LEXIS 10593

Opinion

Order entered on July 28, 1960, denying defendant’s motion to dismiss the complaint under rule 106 and subdivision 4 of rule 107 of the Rules of Civil Practice, unanimously reversed, on the law, with $20 costs and disbursements to appellant, and the motion granted, with $10 costs, with leave, however, for the plaintiff-respondent to replead, if so advised, upon a showing by allegation of ultimate facts that a rescission of the agreement would accomplish some proper purpose, since equity will not suffer the making of a vain arder. (Cf. Sivakoff v. Sivakoff, 280 App. Div. 106, 108.) Concur — Botein, P. J., Breitel, Valente, McNally and Stevens, JJ.