Opinion
December 10, 1951.
Defendant appeals from an order denying its motion to dismiss the two causes of action in the complaint on the ground that each does not state facts sufficient to constitute a cause of action and, in addition, as to the first cause, that it is unenforcible by reason of the Statute of Frauds. Order reversed, with $10 costs and disbursements, and motion granted, with $10 costs, with leave to plead anew within ten days after service of the order to be entered hereon. The allegations of defendant's breach are entirely conclusory in the first cause of action. The second cause of action, under which plaintiff seeks to recover on quantum meruit for services rendered during the contract period, should not replead the allegations setting forth the contract between the parties, for the pleading of the contract without a proper allegation of the breach destroys his right to sue on quantum meruit. Nolan, P.J., Carswell, Johnston, Sneed and Wenzel, JJ., concur.