Opinion
March 20, 1956
Plaintiff appeals from that part of Special Term's order which denied its motion to dismiss the separate defenses. We do not pass upon those defenses inasmuch as plaintiff's own pleading, if insufficient, as it appears to be, would require a dismissal of its complaint ( Cavanagh v. Hutcheson, 140 Misc. 178, affd. 236 App. Div. 794; Baxter v. McDonnell, 154 N.Y. 432). The complaint does not allege that defendant failed to deliver the kroner. The conclusory allegation that it failed to deliver "in accordance with its agreement" may be taken to mean that the kroner were in fact delivered but that the delivery did not comply with the terms of the contract. However, no facts are pleaded to support such a claim. The complaint is clearly insufficient and on the motion addressed to the defenses should therefore have been dismissed. It is appropriate to note, however, in the interest of saving further pleading motions and appeals, that the defenses are not pleaded with sufficient supporting facts. Order, so far as appealed from, unanimously modified so as to dismiss the complaint with leave to plead over and, as so modified, affirmed, without costs. Settle order on notice.
Concur — Peck, P.J., Breitel, Rabin, Frank and Bergan, JJ.