175 A.D. 855 | N.Y. App. Div. | 1916
This appeal is from an order overruling a demurrer to an amended complaint. We had occasion to consider and discuss the original complaint on an appeal from an order overruling a demurrer to it. For the reasons stated in an opinion by Mr. Justice Laughlin we came to the conclusion that the complaint as then framed was insufficient (173 App. Div. 108). We have no intention to rediscuss the questions then considered and determined by us, and shall confine ourselves to considering whether the plaintiff by his amended complaint has met the. deficiencies found in the original pleading. The action is to recover commissions or compensation for procuring a purchaser for a large quantity of rifle cartridges which defendant wished to dispose of. The sale was never consummated, although a conditional agreement for a sale was made between defendant and a purchaser procured by plaintiff, the conditions being that each party to the contract of sale should furnish stipulated guaranties of his ability to complete the sale. There was no allegation in the original complaint, and there is none in this that the proposed purchaser was ever ready, able and willing to perform his contract of purchase and this was considered on the former appeal to be fatal to the plaintiff’s cause of action. He then contended, as he does now, that such an allegation is unnecessary because defendant accepted the purchaser 'and entered into a formal contract with him.
If the written contract of purchase between defendant and
The order appealed from is, therefore, reversed, with ten dollars costs and disbursements, and the demurrer sustained, with
Clarke, P. J., McLaughlin, Smith and Page, JJ., concurred..
Order reversed, with ten dollars costs and disbursements, demurrer sustained, with ten dollars costs, and judgment ordered thereon, with costs.