Castle Inn Restaurant, Inc. v. Prevelegianos ( 1962 )

In an action for specific performance of a written agreement purporting to relate to the sale of a restaurant business and the leasing of premises in which the business is located, defendants appeal from an order of the Supreme Court, Queens County, dated April 12, 1962, which denied their motion, made pursuant to subdivision 4 of rule 106 of the Rules of Civil Practice, to dismiss the complaint on the ground that it does not state facts sufficient to constitute a cause of action. Order reversed, and motion granted, with $10 costs and disbursements, and with leave to plaintiffs, if so advised, to serve an amended complaint within 30 days after entry of the order hereon. In their complaint, plaintiffs allege that a certain writing annexed thereto as “ Exhibit A ” constitutes the agreement with respect to which they seek specific performance. That writing, however, does not state the subject matter of the transaction, i.e., what was to be sold and what was to be leased. It lacks the completeness and certainty which are essential in order to compel the specific performance of a contract. In addition, the writing does not indicate that the individual (as distinguished from the corporate) parties to the action were parties to the agreement. In the absence of appropriate allegations showing the existence of a complete and definite contract binding upon the defendants, a cause of action for specific performance is not stated. Ughetta, Acting P. J., Kleinfeld, Christ, Brennan and Hopkins, JJ., concur.