Opinion
Argued June 8, 1977
Decided July 5, 1977
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, WILLIAM A. MERTENS, JR., J.
Joseph J. Einhorn for appellant.
Patricia D'Alvia for respondent.
MEMORANDUM.
The order is affirmed on the memorandum at the Appellate Division. In addition, we note that the issue of bad faith on the part of the defendant, whatever its merits might have been in the abstract, was neither pleaded nor proved (cf. Gillmore v Procter Gamble Co., 417 F.2d 615; Endres v Buffalo Auto. Assn., 25 Misc.2d 756; Ritz v News Syndicate Co., 16 Misc.2d 1013; Prize Contests — Rights and Remedies, Ann., 87 ALR2d 649, 673).
We dissent and vote to reverse and order a new trial on the dissenting opinion of Mr. Justice THEODORE R. KUPFERMAN at the Appellate Division. We add only that there is no warrant for requiring bad faith to be pleaded, and the authorities cited in the memorandum do not so require. Nor did counsel suggest that pleading bad faith was required, and both counsel agree that, if there were bad faith, a breach of contract would be made out, good faith being implied in all agreements (e.g., Kirke La Shelle Co. v Armstrong Co., 263 N.Y. 79, 87). It should be enough to create a jury question that plaintiff alleged a breach of contract and gave testimony from which an inference of bad faith could be drawn.
Judges JASEN, GABRIELLI, JONES, WACHTLER and FUCHSBERG concur; Chief Judge BREITEL and Judge COOKE dissent and vote to reverse in a separate memorandum.
Order affirmed, with costs, in a memorandum.