Opinion
June 9, 1952.
In an action to cancel an assignment of lease and to direct defendant to reassign the said lease to plaintiff, on the ground of fraud, order denying defendant's motion to dismiss the complaint for failure to state facts sufficient to constitute a cause of action pursuant to rule 106 of the Rules of Civil Practice reversed, with $10 costs and disbursements, and motion granted, without costs, with leave to plaintiff to serve an amended complaint within ten days after the entry of the order to be made hereon, if so advised. The alleged representation upon which the complaint is based, that defendant would pay plaintiff a rebate on gasoline which plaintiff would purchase from defendant, is contractual in nature, and, therefore, "must be enforced if at all by an action upon the contract" ( Adams v. Gillig, 199 N.Y. 314, 318). Carswell, Acting P.J., Johnston, Wenzel, MacCrate and Schmidt, JJ., concur.