Opinion
December 19, 1957
Plaintiff appeals from an order of the Supreme Court entered in Ulster County, which dismissed the amended complaint pursuant to rule 106 of the Rules of Civil Practice, and from the judgment entered thereon. The action is in fraud. The original complaint was dismissed on motion and this court affirmed the dismissal, with leave to replead, on the theory that the alleged misrepresentations were promissory in nature and related merely to future expectations. ( 2 A.D.2d 933.) The amended complaint, which is the subject of this appeal, purports to supply the defects in the original cause of action, and adds an additional cause of action. The first cause of action in the amended complaint alleges: "4. In or about the month of April, 1954, the defendant represented to the plaintiff that its available and uncommitted supplies and productive capacity of aluminum ingot, then existing, were such as rendered it then capable of selling to the plaintiff 400,000 pounds per month and that it had entered into no binding commitments with other customers which could in the future reduce such available and uncommitted supplies and productive capacity." Then follows an allegation of the falsity of the representations and the then existing knowledge on the part of the defendant of the falsity, and an allegation that the defendant had in fact prior thereto entered into long-term contracts and commitments with others. The complaint continues with the usual allegations in a fraud action, including an allegation of damages. As a matter of pleading a cause of action is stated. The second cause of action in the complaint, in essence, is an allegation of a present intention to make available to and sell to the plaintiff certain aluminum when in fact defendant had no such intention at the time the representation was made. As we indicated in our previous decision, such a misrepresentation, squarely stated, is actionable. (See, also, Sabo v. Delman, 3 N.Y.2d 155.) Order and judgment reversed, with costs, and the motion to dismiss is denied, with $10 costs. Foster, P.J., Bergan, Coon, Halpern and Gibson, JJ., concur.