Opinion
February 2, 1954.
Present — Dore, J.P., Callahan, Breitel, Botein and Bergan, JJ.
The obligation of defendant to deliver wine to plaintiff was left by the written instrument subject to agreement to be mutually reached as to price on each of plaintiff's orders. The third cause of action, based on nonperformance, does not plead that the parties had reached an accord on price and it is argued by plaintiff that such an accord is to be implied from a mere pleading of "non-performance of the contract" and in any event is to be found in the bill of particulars. But a complaint which does not plead conclusions of fact constituting an enforcible contract is insufficient, and a reference to a bill of particulars does not help it over its deficiency. Order unanimously reversed, with $20 costs and disbursements to the appellant, and the third cause of action dismissed, with leave to the plaintiff to replead.