Opinion
December 31, 1947.
Present — Taylor, P.J., Harris, McCurn, Larkin and Love, JJ. [ 189 Misc. 377.]
Order modified by permitting the plaintiff to serve an amended complaint within twenty days after service of a copy of the order with notice of entry thereof, upon payment of $10 costs, and as so modified affirmed, without costs of this appeal to either party. Memorandum: We conclude that, broadly construed, the complaint discloses a cause of action for specific performance of a written agreement of August 21, 1946, to which the Statute of Frauds does not apply. The plaintiff has unnecessarily pleaded a contract partly oral and partly written when, in truth, he has, what appears to be, a complete written contract for the purchase and sale of the property. We determine, therefore, that although this complaint may have been properly dismissed, plaintiff should be permitted to serve an amended pleading, upon the payment of $10 costs. All concur. (The order grants defendant's motion to dismiss plaintiff's complaint in an action to declare the amount of the purchase price to be paid for certain property and to compel specific performance of a contract of purchase on the basis of said amount.)