Opinion
December 20, 1955
It may have been intended, as plaintiff contends and construes the complaint, to allege a single cause of action for breach of warranty. The complaint, however, sets forth chronologically a series of events including the purchase and sale of a piece of machinery, a subsequent written agreement between the parties containing a warranty and a further oral agreement to enter into a second formal contract in writing which defendant failed to execute. The ultimate claim of the plaintiff is that the machine did not function properly with resulting damage. The complaint is so framed that it is impossible to separate what may be historical facts from the gravamen of the action. Order unanimously reversed, with $20 costs and disbursements to the appellant and the motion to dismiss the complaint granted with leave to plaintiff to serve an amended complaint. Settle order on notice.
Concur — Peck, P.J., Breitel, Bastow and Cox, JJ.