Opinion
October 5, 1949.
Present — Taylor, P.J., McCurn, Love, Kimball and Piper, JJ.
Order reversed on the law, with $10 costs and disbursements, and motion granted, with $10 costs, with leave to the plaintiff to serve an amended complaint within twenty days from the date of service of a copy of the order herein. Memorandum: The complaint contains two causes of action, the first alleges a contract to purchase certain tomatoes on September 15, 1948, and the second a similar contract on September 19, 1948. The original bill of particulars sets forth an oral agreement made between the parties for the purchase by the defendant from the plaintiff on September 15, 1948, and partial delivery and acceptance by the defendant. In plaintiff's affidavit, it is stated that the date in the bill of particulars was an error and should have been August 5, 1948. The order appealed from denies defendant's motion to dismiss the second cause of action and permits plaintiff to serve an amended bill of particulars. We do not think that any amendment to the bill of particulars will cure the defect in the complaint. If there was but one contract and there has been sufficient performance and acceptance to take it out of the Statute of Frauds, the complaint should so allege. All concur. (The order denies defendant's motion to dismiss plaintiff's second cause of action, and permits plaintiff to serve an amended bill of particulars.)