Opinion
December 22, 1952.
In an action for breach of a contract to make a will providing for payment upon the death of the promissor, order, insofar as appealed from, denying motion to dismiss the third cause of action as premature, affirmed, with $10 costs and disbursements. The pleading is susceptible of a construction that an existent breach of contract has occurred, namely that the contract provided for the execution of a will in November, 1947, or at least upon the changing by the corporation of the amount of the annual payment to the plaintiff which, it is alleged, took place in October, 1951. ( Baer v. Durham Duplex Razor Co., 228 App. Div. 350, affd. 254 N.Y. 570.) Nolan, P.J., Carswell, Adel, Wenzel and MacCrate, JJ., concur. [See post, p. 753.]