Opinion
May 3, 1943.
In an action to recover damages for breach of an alleged contract and for equitable relief, order denying defendants' motion to dismiss the second cause of action on the ground that it is insufficient in law, pursuant to rule 106 of the Rules of Civil Practice, and to strike out certain allegations of the first cause of action pursuant to rules 102 and 103 of the Rules of Civil Practice, reversed on the law, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, with leave to plaintiffs to serve an amended complaint within ten days from the entry of the order hereon. The second cause of action is insufficient. The contract, as alleged, is unenforcible since it is merely an agreement to agree on vital elements of the contract, such as the price and type of merchandise to be made and sold and the amount of financial aid to be given. ( St. Regis Paper Co. v. Hubbs Hastings P. Co., 235 N.Y. 30; Dubeshter v. Life-Lube Oil Corp., 264 App. Div. 875, affd. 290 N.Y. 675.) The portions of the first cause of action attacked by the motion to strike out relate to the unenforcible contract and are irrelevant and unnecessary. If all the terms of the contract were agreed upon between the parties, or if plaintiffs seek repayment of moneys advanced or commissions for goods actually ordered through them and delivered, the facts should be set forth by appropriate allegations in the amended complaint. Hagarty, Carswell, Johnston, Adel and Lewis, JJ., concur.