Opinion
May 31, 1949.
Action to recover damages for failure to deliver certain ready-mixed concrete, pursuant to a purported written contract. Order denying appellant's motion to dismiss the complaint, pursuant to subdivision 5 of rule 106 of the Rules of Civil Practice, on the ground that it appears on the face of the complaint that it does not state facts sufficient to constitute a cause of action, reversed on the law, with $10 costs and disbursements, and the motion granted, with $10 costs. The writing does not obligate respondent, as the prospective purchaser, to order or accept from appellant any of the merchandise in question and, therefore, no valid contract has been made. (See Dubeshter v. Life-Lube Oil Corp., 264 App. Div. 875, affd. 290 N.Y. 675.) Carswell, Acting P.J., Johnston, Adel, Wenzel and MacCrate, JJ., concur. [ 194 Misc. 982.]