19 A.D.2d 582 | N.Y. App. Div. | 1963
Order unanimously modified in accordance with the memorandmn and as modified affirmed, without costs of this appeal to any party. Memorandum: The action is alleged to be brought to obtain relief under the terms of a written contract. No copy of the contract is annexed to the complaint, nor is the contract pleaded by alleging any of its terms. While it is generally unnecessary to set forth the contract in full, the provisions upon which the plaintiff’s claim is based must, nevertheless, be Set out (Fox v. Stern Dental Supply Co., 207 App. Div. 750, 751; Bandler v. Globe & Rutgers Fire Ins. Co., 205 App. Div. 515, 516; Crossways Apts. Corp. v. Amante, 213 App. Div. 430, 434; Du Pont Auto. Distributors v. Du Pont Motors, 213 App. Div. 313, 315). The complaint does not state a cause of action and it was properly dismissed. However, the order should be modified to permit appellant to serve an amended complaint to which a copy of the contract should be annexed so as to apprise the court of the obligations assumed by defendants and the rights and benefits, if any, bestowed upon plaintiff. (Appeal from order of Erie Special Term granting defendants’ motion to dismiss the amended complaint pursuant to rule 106 of the Rules of Civil Practice.) Present — Williams, P. J., Bastow, Halpern, McClusky and Henry, JJ.
