Opinion
December 15, 1953.
Present — Callahan, J.P., Breitel, Bastow, Botein and Bergan, JJ.
Order on motion addressed to the first cause of action pleaded in the complaint unanimously modified in the following respects: (a) by requiring that paragraph 4 purporting to describe the obligation of the contract undertaken by defendant be made more definite and certain. There should be a plain and concise statement of what it is claimed defendant agreed to do to "properly promote the sale" and "conduct a continuous and vigorous" advertising campaign in respect of duration and manner of performance; (b) by requiring that paragraph 8 be made more definite and certain as to what agreement was violated by defendant by discontinuance of publication and promotion at the time alleged. What is meant by "thereafter" could be supplied, as far as a mere statement of a date is involved, by a bill of particulars; but how the discontinuance became a breach at that time is an integral part of the cause pleaded and there ought to be a plain statement of how a breach is claimed to have accrued at that time. The order is further modified by dismissing the fourth cause of action with permission to plead over. This purported cause of action pleads that defendant had an agreement with a third party from which the plaintiffs would have derived a benefit if it had been carried out, but defendant "in violation of its duty as trustee" for plaintiffs released the third party. The terms of the purported trust which would have imposed a duty on defendant not to have released the third party are not pleaded and the facts that are pleaded show neither a contractual nor a fiduciary obligation as trustee not to release such third party. As so modified, the order is affirmed. Settle order on notice.