Opinion
May 28, 1937.
In an action to recover damages for breach of contract, order denying defendant's motion (Rules Civ. Prac. rule 106, subd. 5) to dismiss the complaint upon the ground that it does not state facts sufficient to constitute a cause of action reversed on the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. The terms of the writing dated December 13, 1929, signed by appellant, which letter the respondent in his brief asserts is the contract between the parties, determined their rights notwithstanding the allegations of the complaint which purport to construe and even amplify those terms. ( Sonino v. Magrini, 225 App. Div. 536, 539, and cases cited.) As matter of law, the promise of the defendant contained in the writing was gratuitous and without consideration. The detriment claimed to have been suffered by the plaintiff because of his refraining from selling his stock in New York Investors, Inc., before the end of the period mentioned in the writing, does not furnish such consideration. That detriment was not requested by the defendant promisor. ( Allegheny Col. v. Nat. Chautauqua Co. Bank, 246 N.Y. 369, 373; Wisconsin Michigan R. Co. v. Powers, 191 U.S. 379, 386.) Defendant's motive in making his promise, based upon his desire that plaintiff should not suffer because of defendant's advice to purchase the stock, likewise does not constitute valid consideration. ( Pershall v. Elliott, 249 N.Y. 183, 188; Williston on Contracts, § 111.) There was no contract. Lazansky, P.J., Carswell, Johnston, Taylor and Close, JJ., concur.