270 A.D. 987 | N.Y. App. Div. | 1946
Though it is alleged in the counterclaim challenged that plaintiff agreed that shipping space on its vessel “ was to be used in any amount required by the defendant up to Twenty-two Hundred (2,200) Tons ”, there is no allegation of any facts from which an obligation on the part of defendant to take any space upon the vessel may be inferred. The alleged contract contains no express' consideration, nor are there any mutual promises of the parties from which such consideration can be fairly deduced; it is therefore unenforcible. Unless both parties to a contract are bound so that either has a cause of action for breach thereof, neither is bound, (Schlegel Mfg. Co. v. Cooper’s Glue Factory, 231 N. Y. 459, 562.) The order should, accordingly, be reversed, with $20 costs and disburseménts, and the motion to strike out the first counterclaim in defendant’s amended answer granted, with leave to the defendant to serve an amended answer within ten days after service of order with notice of entry, on payment of said costs.
Martin, P. J., Dore, Cohn, Callahan and Peek, JJ., concur.
Order unanimously reversed, with $20 costs and disbursements, and the motion to strike out the first counterclaim in defendant’s amended answer granted, with leave to the defendant to serve an amended answer within ten days after service of order with notice of entry, on payment of said costs.