Vanguard Military Equipment Corp. v. Schulein

266 A.D. 912, 42 N.Y.S.2d 526, 1943 N.Y. App. Div. LEXIS 5150

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 2, 1943
• Status: Published

Opinion

Per Curiam.

The challenged counterclaim and cross complaint alleges an oral agreement between defendant-respondent, plaintiff and the impleaded defendants, which is vague, indefinite and uncertain. From the facts set forth the full intention of the parties to the alleged contract cannot be ascertained with a reasonable degree of certainty. Such an agreement is unenforcible. (Varney v. Ditmars, 217 N. Y. 223, 228.) The essential terms of a contract and the facts showing damage upon which the action is based must be pleaded. (King v. Krischer Mfg. Co., Inc., 220 App. Div. 584, 585; Janvier, Inc., v. Baker, 229 App. Div. 679; Garcin v. Granville Iron Corp., 137 Misc. 648, 650.) This, the pleading attacked fails to do.

The order should be reversed, with twenty dollars costs and disbursements, and the motion to dismiss the counterclaim granted, with leave to the defendant-respondent to plead over within ten days upon payment of costs.

Present — Martin, P. J., Townley, Untermyer, Dore and Cohn, JJ.

Order unanimously reversed, with twenty dollars costs and disbursements, and motion to dismiss the counterclaim granted, with leave to the defendant-respondent to plead over within ten days after service of order, on payment of said costs.