Opinion
November 25, 1946.
Appeal by defendants from so much of an order as denied their motion for judgment on the pleadings dismissing the complaint. The first cause of action seeks damages resulting from the breach by defendant Demuth Glass Works, Inc., of an alleged oral contract with plaintiff, whereby plaintiff was granted the exclusive right to act as its agent in the sale and distribution of "cane glass" manufactured by it, to a certain class of buyers. The second cause of action pleads the breach of a somewhat similar written agreement. The third cause of action, as limited by the bill of particulars, alleges a conspiracy on the part of all the defendants to induce the breach of the agreement set forth in the second cause of action. Order, insofar as appealed from, affirmed, with $10 costs and disbursements. The oral agreement alleged in the first cause of action is not lacking in mutuality. ( Moran v. Standard Oil Co., 211 N.Y. 187; Ehrenworth v. Stuhmer Co., 229 N.Y. 210; Atlantic Metal Products v. Minskoff, 267 App. Div. 1002, affd. 295 N.Y. 566.) Neither is it barred by subdivision 1 of section 31 or section 85 Pers. Prop. of the Personal Property Law. ( Ward v. Hasbrouck, 169 N.Y. 407; Suslak v. Rokeach Sons, 269 App. Div. 779, affd. 295 N.Y. 799; Carter White Lead Co. v. Kinlin, 47 Neb. 409; Van Woert v. Albany Susquehanna R.R. Co., 67 N.Y. 538; Phillips-Jones Co., Inc., v. Reiling Schoen, Inc., 193 App. Div. 716. ) The cases of Cohen v. Bartgis Bros. Co. ( 264 App. Div. 260, affd. 289 N.Y. 846) and Franklin Sugar Ref. Co. v. Eiseman ( 290 Pa. 486), relied on by defendants, are not controlling, as the contracts there involved are dissimilar. The second cause of action is also sufficient. ( Ehrenworth v. Stuhmer Co., supra; Atlantic Metal Products v. Minskoff, supra; 4 Williston on Contracts [Rev. ed.], § 1027A; Bailey v. Stafford, Inc., 178 App. Div. 811; Abrams v. George E. Keith Co., 30 F.2d 90; Fuel Co. v. Plumb, 182 Pa. 463.) The third cause of action is likewise sufficient. ( Hornstein v. Podwitz, 254 N.Y. 443; Remy Beverages, Inc., v. Myer, 269 App. Div. 1013.) While defendant Demuth Glass Works, Inc., is not a proper party to this cause of action, such a defect is not a ground for dismissal. ( McKnight v. Bank of New York Trust Co., 254 N.Y. 417; Rules Civ. Prac., rule 102; Civ. Prac. Act, § 192.) Lewis, P.J., Hagarty, Carswell, Johnston and Adel, JJ., concur.