Eaton v. Reich , 246 N.Y.S. 97 ( 1930 )

Levy, J.

Defendant contends that his agreement was one to lend money, and that consequently no recovery may be had for its breach in the absence of a showing of special damages. He also urges that the terms of the proposed loan were indefinite and the agreement,, therefore, unenforcible. I am not at all certain as to either of these propositions, since it seems to me that the defendant undertook to purchase bonds of a definite character, comprising part'of a specific issue authorized by the building fund of the Level Club, Inc. The point that no tender of the bonds is alleged appears to be without merit, in view of the provisions of subdivision 2 of section 144 of the Personal Property Law (as added by Laws of 1911, chap. 571). It seems the price here was payable on specified dates, irrespective of delivery or of transfer of title, and subdivision 2 would accordingly appear to apply.

For the reasons stated, the cross-motion to dismiss the complaint for insufficiency must be denied. As a triable issue is presented by the answering affidavit, plaintiff’s motion for summary judgment is denied. Order signed.