Opinion
July 8, 1954.
Appeal from Supreme Court, Schenectady County.
The action is for specific performance of a "Memorandum of Agreement". The written document involved purports to be an agreement "to execute" a lease of certain premises owned by defendant to the plaintiff for a term of forty years. In addition to the provided rent of $100 per month and taxes, plaintiff agreed to do certain things to improve the property, the improvements to revert to defendant at the end of the term. It is apparent from the writing itself that a substantial part of the consideration for the proposed lease to be executed was the improvements. The writing, which is a part of the complaint, vaguely describes the property, and asserts that a formal lease shall be executed to include "such terms as are usual in such leasing". This term could mean anything, depending on an individual point of view. The writing also calls upon the plaintiff to construct a structure "to be used as super market". The contract as pleaded is too indefinite to be enforcible. The order dismissing the complaint for insufficiency on its face was therefore properly granted. However, the plaintiff contended upon the oral argument that the complaint did not state the whole of the agreement or understanding between the parties and that there were facts known to both parties which gave content to the indefinite terms of the pleaded agreement. The plaintiff should be given an opportunity to serve an amended complaint. The defendant will, of course, have an opportunity to raise the statute of frauds or any other relevant defense with respect to the amended complaint. Order modified, on the law and facts, by granting plaintiff leave to serve an amended complaint, and as so modified, affirmed, with $25 costs to respondent. Foster, P.J., Bergan, Coon, Halpern and Imrie, JJ., concur. [See post, pp. 910, 994.]