Majority
p. 655Abraham Seif, Respondent, v. Cantor, Fitzgerald & Co., Inc., Appellant.
Order, Supreme Court, New York County, entered on May 30, 1972, unanimously reversed, on the law, defendant-appellant’s motion to dismiss the complaint granted, and plaintiff-respondent’s cross motion for leave to serve an amended complaint denied. Appellant shall recover of respondent $60 costs and disbursements of this appeal. The original complaint sought a finder’s
p. 656
fee in connection with the obtaining of a loan. The complaint was based on an alleged oral agreement and therefore dismissible (§ 5-701, subd. 10, General Obligations Law). The proposed amended complaint recited the identical transaction, merely changing the label in attempted avoidance of the Statute of Frauds by terming the transaction a joint venture. Special Term permitted the amendment, leaving an application to dismiss for consideration in a possible future motion. The proposed amended complaint did not even come up to minimal standards for consideration as such; it neither supplied the -deficiencies in the original complaint nor satisfied the requirement that it be accompanied by proof showing good ground to support its allegations. (See Cushman & Wakefield v. John David, Inc., 25 A D 2d 133 .) Concur — Stevens, P. J., McGivern, Markewich, Kupferman and Steuer, JJ.
Cases cited
- Cushman & Wakefield, Inc. v. John David, Inc. 25 A D 2d 133 p. 656