274 A.D. 908 | N.Y. App. Div. | 1948
In an action to recover damages for breach of a brokerage contract and for fraud, order denying defendant’s motion to dismiss the second cause of action set forth in the complaint, etc., modified as follows: (a) by striking from the first ordering paragraph the word “ denied ” and inserting in place thereof the word “granted”; (b) by striking out the second ordering paragraph; (c) by striking out the third ordering paragraph and inserting in place thereof the following: “ ORDERED that the plaintiff is hereby granted the right to serve an amended complaint, if he be so advised, setting forth any additional causes of action ”; and (d) by striking out the fourth ordering paragraph. As thus modified, the order is affirmed, with $10 costs and disbursements to appellant, and with leave to serve an amended complaint within ten days from the entry of the order hereon. The second cause of action, as alleged, is insufficient in that there are no allegations of fact showing that any fraudulent representations induced forbearance and delay in bringing the action or that the delay resulted in damage to plaintiff. Nolan, P. J., 'Carswell, Johnston, Adel and Sneed, JJ., concur.
