Cinefot International Corp. v. Hudson Photographic Industries, Inc.

Eager, J. (dissenting in part).

I concur in the dismissal of the complaint but would give leave to replead. In my opinion, a contract, such as alleged in the complaint, could be renewed by implication for the period of one year. The question here, as in every such implied contract case, is whether or not it is the reasonable inference, from the conduct and actions of the parties, that they agreed in fact to renew a previously existing one-year contract for a like period of time and upon the same conditions. But the complaint here does not, in my opinion, plead facts and circumstances sufficient to establish that it was impliedly agreed between the parties that this particular contract should be renewed for another full year commencing the first day of January, 1960. If such facts and circumstances do exist, plaintiff should be given an opportunity to plead the same.

Rabikt, J. P., McNally and Stetjer, JJ., concur in Per Curiam opinion; Eager, J., dissents in part in opinion in which Valente, J., concurs.

Order, entered on September 20, 1962, reversed, on the law, with $20 costs and disbursements to the appellant, and the motion to dismiss the complaint granted, with $10 costs.