Opinion
February 3, 1958
In an action by the owner of real property against a real estate broker and a real estate salesman to recover damages alleged to have resulted from a breach of duty, the appeal is from so much of an order as denies the broker's cross motion to dismiss the second amended complaint for insufficiency (Rules Civ. Prac., rule 106, subd. 4). Order modified by striking from the second ordering paragraph the word "denied" and by substituting therefor the words "granted, with leave to plaintiff to serve a further amended complaint". As so modified, order insofar as appealed from affirmed, with $10 costs and disbursements to appellant. The further amended complaint is to be served, if respondent be so advised, within 10 days after the entry of the order hereon. In our opinion the second amended complaint does not contain any factual allegation as to how the appellant and her codefendant violated their duties, or what their misconduct consisted of. While pleadings must be liberally construed with a view to substantial justice between the parties (Civ. Prac. Act, § 275), ultimate facts and not legal conclusions must be pleaded. (Civ. Prac. Act, § 241; Benton v. Kennedy-Van Saun Mfg. Corp., 2 A.D.2d 27.) Nolan, P.J., Wenzel, Beldock, Murphy and Ughetta, JJ., concur.