Judges: Bergan, Coon, Foster, Gibson, Halpern
Filed Date: 12/19/1957
Status: Precedential
Modified Date: 11/1/2024
Plaintiff appeals from an order of the Supreme Court entered in Ulster County, which dismissed the amended complaint pursuant to rule 106 of the Rules of Civil Practice, and from the judgment entered thereon. The action is in fraud. The original complaint was dismissed on motion and this court affirmed the dismissal, with leave to replead, on the theory that the alleged misrepresentations were promissory in nature and related merely to future expectations. (2 A D 2d 933.) The amended complaint, which is the subject of this appeal, purports to supply the defects in the original cause of action, and adds an additional cause of action. The first cause of action in the amended complaint alleges: “4. In or about the month of April, 1954, the defendant represented to the plaintiff that 'its available and uncommitted supplies and productive capacity of aluminum ingot, then existing, were such as rendered it then capable of selling to the plaintiff