Duffield v. Montauk Realty Security Co.

Order denying defendant’s motion for judgment on the pleadings affirmed, with ten dollars costs and disbursements. No opinion. Lazansky, P. J., and Kapper, J., concur; Hagarty, J., concurs upon the ground that the complaint states facts sufficient to constitute a common-law cause of action for damages for breach of contract; Rich and Scudder, JJ., dissent and vote for reversal, with the following memorandum: The complaint alleges a cause of action in equity for specific performance. Without allegations to the effect that the stock has any peculiar value, or that the computation of its value is difficult or impossible and that plaintiff has no adequate remedy at law, “ equity would not ** * * exercise its discretion to award specific performance of the agreement set out in the complaint, and without such averments, the pleading cannot be said to state a cause of action in equity for specific performance.” (Bateman v. Straus, 86 App. Div. 540, 544; Kennedy v. Thompson, 97 id. 296.)