Opinion
February 24, 1959
Present — Nolan, P.J., Beldock, Murphy, Ughetta and Hallinan, JJ.
In an action to recover damages for wrongful interference with the performance of a contract, the appeal is from an order which granted respondent's motion to dismiss the amended complaint for failure to state a cause of action, without leave to plead over. Order modified by striking therefrom the provision which denied appellant the right to replead and by substituting therefor a provision granting appellant leave to serve a second amended complaint, if it be so advised. As so modified, order unanimously affirmed, with $50 costs and disbursements to respondent. The second amended complaint is to be served within 10 days after entry of the order hereon upon payment of the costs and disbursements of this appeal. In our opinion, the learned Special Term properly held that paragraphs "Eleventh" and "Nineteenth" of the amended complaint failed to supply the deficiencies pointed out when this court reviewed the original complaint ( Vendall v. Statler Mfg. Corp., 5 A.D.2d 882). Since appellant states that the present pleading was drawn in good faith in anticipated compliance with our previous decision, we are granting to appellant a further opportunity to replead upon payment, however, of the costs and disbursements above mentioned.