Opinion
May 26, 1958
In an action to recover damages for breach of a written contract, the appeal, by permission of this court, is from an order of the Appellate Term which (1) reversed an order of the City Court of the City of New York, Kings County, granting a motion to dismiss the complaint on the ground that the complaint does not state facts sufficient to constitute a cause of action (Rules Civ. Prac., rule 106, subd. 4), and (2) denied the motion to dismiss the complaint. It is claimed the contract was unenforcible for lack of mutuality. Order of the Appellate Term reversed and motion to dismiss the complaint granted, with costs in all courts. By the provisions of the contract, respondent agreed to bottle "the milk supplied by" appellant. There was no provision requiring appellant to supply any quantity of milk, nor could the contract be construed to contain such a provision by implication. The contract was, therefore, unenforcible ( Schlegal Mfg. Co. v. Cooper's Glue Factory, 231 N.Y. 459). The rules relating to exclusive agency contracts ( Wood v. Duff-Gordon, 222 N.Y. 88), contracts of hiring ( Moran v. Standard Oil Co., 211 N.Y. 187), and output or requirements contracts ( Atlantic Metal Prods. v. Minskoff, 267 App. Div. 1002, affd. 295 N.Y. 566) are not applicable. The contract, lacking mutuality of obligation, may not be held enforcible merely because, in form, it appeared to consist of an offer and an acceptance ( Chicago Great Eastern Ry. Co. v. Dane, 43 N.Y. 240). Wenzel, Acting P.J., Murphy, Ughetta, Hallinan and Kleinfeld, JJ., concur.