259 A.D. 229 | N.Y. App. Div. | 1940
The complaint is insufficient for failure properly to allege damage. The pleading fails to show that defendant would have derived more than $12,000 per annum as profit upon the stock owned by him if he had performed the contract pursuant to its terms. “ In the absence of allegations of fact showing damage, allegations of a breach of contract are not sufficient to sustain a complaint.” (Deutsch v. Textile Waste Merchandising Co., 212 App. Div. 681, 687; Conti v. Cohen, Inc., 197 id. 302.)
In the contract upon which plaintiff relies the only consideration mentioned is one dollar paid by each party to the other. Under the terms of the agreement, for the exchange of one dollar, defendant promised, during a specified period, to give to plaintiff one-half of defendant’s income in defendant’s stock in the City Theatres Company in excess of $12,000 per annum. No other consideration is alleged in the complaint. As a general rule the recitals of a
The order denying defendant’s motion for judgment on the pleadings should be reversed, with twenty dollars costs and disbursements, and defendant’s cross-motion for judgment dismissing the complaint granted, with leave to plaintiff to serve an amended complaint within twenty days after service of order upon payment of said costs.
Present — Martin, P. J., Townley, Dore, Cohn and Callahan, JJ.
Order unanimously reversed, with twenty dollars costs and disbursements, and motion granted, with leave to plaintiff to serve an amended complaint within twenty days after service of order upon payment of said costs.