Pocono Forestry Corp. v. Price, 273 A.D. 812

Pocono Forestry Corp. v. Price

273 A.D. 812 | N.Y. App. Div. | 1948

Action to recover damages because of failure of defendants to accept and pay for wagons which they had contracted to purchase from plaintiff. Order denying motion to dismiss the second cause of action for insufficiency reversed on the law, with $10 costs and disbursements, and the motion granted, with $10 costs. An action for fraud, in addition to that based on breach of contract, is not maintainable *813under the facts pleaded hereon. The agreement to accept the wagons and to pay therefor was merged in the contract as pleaded, and no fraud extraneous thereto is alleged which is essential, as distinguished from action on contract, to recovery of damages. (Adams v. Gillig, 199 N. Y. 314, 318, 320; Crossways Apartments Corporation V. Amante, 213 App. Div. 430, 437; Brick v. CohnHall-Marw Co., 276 N. Y. 259, 265.) Lewis, P. J., Carswell, Johnston, Sneed and Wenzel, JJ., concur. [See post, p. 857.]