Opinion
December 14, 1942.
Plaintiffs appeal from an order granting a motion to dismiss the complaint under rule 106, Rules of Civil Practice, on the ground that it does not state facts sufficient to constitute a cause of action, and from the judgment entered thereon. Order modified on the law by striking out the second, third and fourth ordering paragraphs and substituting therefor the following: "Ordered that the defendants' motion to dismiss the complaint herein under Rule 106 be, and the same hereby is, denied as to the first cause of action and granted as to the second cause of action on the ground that it appears on the face thereof that it does not state facts sufficient to constitute a cause of action." As so modified, the order is affirmed, without costs, with leave to respondents to answer within ten days from the entry of the order hereon. The judgment entered on the said order is vacated, without costs. The first cause of action clearly states an action for the breach of a contract of partnership and for an accounting. It is not necessary to allege due performance by plaintiffs. ( Cahill v. Haff, 248 N.Y. 377.) Appellants do not present any points with respect to the second cause of action. Furthermore, there is no provision of the bill of sale annexed to the complaint under which defendant Nicolopoulas covenanted and agreed not to establish directly or indirectly any similar business, the breach of which alleged covenant is the basis of the second cause of action. Lazansky, P.J., Hagarty, Johnston, Taylor and Close, JJ., concur.