Majority
The challenged counterclaim and cross complaint alleges an oral agreement between defendant-respondent, plaintiff and the impleaded defendants, which is vague, indefinite and uncertain. From the facts set forth the full intention of the parties to the alleged contract cannot be ascertained with a reasonable degree of certainty. Such an agreement is unenforcible. (Varney v. Ditmars, 217 N. Y. 223 , 228.) The essential terms of a contract and the facts showing damage upon which the action is based must be pleaded. (King v. Krischer Mfg. Co., Inc., 220 App. Div. 584 , 585; Janvier, Inc., v. Baker, 229 App. Div. 679 ; Garcin v. Granville Iron Corp., 137 Misc. 648 , 650.) This, the pleading attacked fails to do.
The order should be reversed, with twenty dollars costs and disbursements, and the motion to dismiss the counterclaim granted, with leave to the defendant-respondent to plead over within ten days upon payment of costs.
Present — Martin, P. J., Townley, Untermyer, Dore and Cohn, JJ.
Order unanimously reversed, with twenty dollars costs and disbursements, and motion to dismiss the counterclaim granted, with leave to the defendant-respondent to plead over within ten days after service of order, on payment of said costs.
Cases cited
- Varney v. Ditmars 217 N. Y. 223 at 228 p. 912
- Garcin v. Granville Iron Corp. 137 Misc. 648 at 650 p. 912