Opinion
November 29, 1954.
In an action by sellers for specific performance of a contract for the sale of real estate in the first cause of action and for the price of personalty contracted to be sold by separate instrument in the second cause of action, order denying a motion to dismiss the complaint for insufficiency affirmed, without costs. Whether the first cause of action is insufficient because of lack of mutuality should be determined at the trial upon the basis of all the proof adduced. Since the motion is addressed to the sufficiency of the complaint as a whole and since, in our opinion, the second cause of action is sufficient on its face, the motion was properly denied. ( Andrews v. 98 Montague, 282 App. Div. 1066, and cases cited therein; Jones v. Johnson Sons, 283 App. Div. 1085.) Nolan, P.J., Wenzel, Schmidt, Beldock and Murphy, JJ., concur.