Newgold v. WLIB, Inc.

273 A.D. 892 | N.Y. App. Div. | 1948

The allegation that the plaintiff was entitled to a minute at the opening and closing of his radio program for personal exploitation, is a conclusion of law, as phrased in the complaint. The contract for the broadcast is annexed to the complaint and contains no such express provision. Therefore, Special Term correctly struck out the said allegation and the allegations of special damage resulting from the loss of that particular personal advantage, which plaintiff claims he would have derived from the contract if it had been performed. The contract describes the nature of the broadcast in general terms, and by the language* employed in the complaint the pleader may have intended to allege a custom in connection with such broadcasts to allow to the broadcaster a short period for personal build-up at the opening and close of the program. The portion of the complaint that has been stricken out falls short of alleging such a custom, but, if it existed, we do not intend to prevent the plaintiff from pleading such material in an amended complaint, together with any claim to special damages by reason thereof, so that such an issue, if it exists, will be clearly defined! and capable of being met by the defendant. We reserve the right to pass upon the sufficiency in law of whatever amendment to the complaint may be' interposed, after it has been made. Order appealed from unanimously affirmed, with $20 costs and disbursements to the respondent, with leave to the plaintiff to serve an amended complaint within ten days after service of the order, with notice of entry thereof, on payment of said costs. Present — Peck, P. J., Dore, Callahan, Van Voorhis and Shientag, JJ. Sam Mencher, as President of the Furriers’ Joint Council of New York,