Whamond v. North Side Board of Trade

143 N.Y.S. 754

• Court: Appellate Terms of the Supreme Court of New York
• Decided: October 23, 1913
• Status: Published

Opinion

GUY, J.

This action is brought on an alleged contract, a copy of which is annexed to and made part of the complaint, for the publication of an illustrated and descriptive booklet of the Bronx. The complaint alleges that defendant is a membership corporation; that one Davis was chairman of its literature and publication committee; that plaintiff submitted its proposal to publish a booklet to the chairman of defendant’s publication committee; that the committee recommended the acceptance of the proposal; that defendant then authorized the committee to accept the proposal; that the committee, through- its chairman, for and on behalf of defendant, duly accepted the proposal, which it had authority to accept on defendant’s behalf, and subsequently the defendant abandoned and refused to perform said contract. The answer admits the incorporation of defendant, that Davis was chairman of said committee, and that the committee recommended an acceptance of plaintiff’s proposal, and denies all other allegations of the complaint.

These facts, as alleged in the complaint, when read in connection with the contract, which is a part of the complaint, do not, however, set up a cause of action. Nowhere does it appear that by said contract defendant was obligated to do any act or perform any duty which it has neglected or refused to do or perform. There being no duty to perform, a mere allegation of refusal to perform does not constitute a cause of action.

The order must therefore be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs, with leave to plaintiff to serve an amended complaint within six days upon payment of costs in this court and in the court below. All concur.