Opinion
May 24, 1943.
On the court's own motion, the decision of this court handed down May 17, 1943 [ ante, p. 795], is amended to read as follows: Order granting defendants' motion for judgment on the pleadings dismissing the amended complaint modified on the law so as to provide that the motion be granted as to the second cause of action only, without costs, and that the action be severed and proceed as to the first cause of action. As thus modified, the order is affirmed, with ten dollars costs and disbursements to the appellant. While the second cause of action is insufficient in law ( Miller v. Vanderlip, 285 N.Y. 116), in our opinion the first cause of action states facts sufficient to constitute a cause of action for breach of contract. Performance by a promise of an act which he is not obligated to perform, or the surrender by him of a privilege which he has the legal right to assert, is sufficient consideration for a promise, since it is a legal detriment, irrespective of whether it is an actual detriment or loss to him. ( L'Amoreux v. Gould, 7 N.Y. 349; Hamer v. Sidway, 124 N.Y. 538; Lajam v. Sahdala Son Corp., 184 App. Div. 490; Street v. Galt, 136 App. Div. 724.) Hagarty, Johnston, Adel, Taylor and Lewis, JJ., concur.