Hopkins v. Newstead

John H. Farnham, J.

The defendants have moved under rule 106 of the Buies of Civil Practice to dismiss plaintiff’s amended complaint, on the ground that it does not state facts sufficient to constitute a cause of action. The general rule is, under this rule the complaint must be given every fair intendment.

The amended complaint, which is verified, is based on an agreement to purchase and sell the property of the defendants. It is alleged that by the terms of the agreement, plaintiff’s offer was contingent upon selling the property located at No. 1119 Main Street, in the Village of Phoenix, New York, for the sum of $13,500 by October 31, 1959. In paragraph 7 of the amended complaint, the plaintiff alleges that the said price of $13,500 included a brokerage commission of 5% if the plaintiff’s property were sold by a real estate broker. In paragraph 10 of the said amended complaint, the plaintiff alleges that he was unable to sell his property by October 31,1959, for the sum of $13,500. The court agrees that paragraph 10 of the amended complaint obviously does not repeat the exact allegations in paragraph 7 thereof. However, the picture is before the court that the plaintiff did not sell his property, and that the plaintiff was unable to sell his property by October 31, 1959, for the sum of $13,500.

The decision is that as a pleading the amended complaint is sufficient. What the proof to be adduced on the trial of the action may be is not before the court at this time and, therefore, is not for this court to consider.

In the memorandum submitted by the defendant, it is suggested that should the plaintiff’s amended complaint be dismissed, the plaintiff should have leave to serve a further amended complaint. Therefore, it is left for the plaintiff to determine whether he should further amend his amended complaint or seek leave to do so.