Opinion
May 22, 1967
Order of the Supreme Court, Nassau County, dated November 17, 1966, which denied plaintiff's motion to dismiss the affirmative defense and counterclaim contained in defendant's answer on the ground that said affirmative pleading has no merit, pursuant to CPLR 3211, 3212, reversed and motion granted, with $10 costs and disbursements. In the defense and counterclaim defendant alleged that, between early 1956 and January, 1965, plaintiff performed plumbing and heating work and supplied materials on various properties owned by defendant, which included the plumbing and heating work referred to in the complaint, and that the total agreed and reasonable value of all the work and materials was not in excess of $187,000, but defendant, based on incorrect bills and invoices presented to it by plaintiff, erroneously overpaid $31,600 to plaintiff. The overpayments were allegedly made during a period of about nine years. Defendant states that there was no agreement as to price except that it was agreed that plaintiff would do the work economically and at reasonable cost to defendant. It contends that it orally notified plaintiff in 1956, when the first bills and invoices were received, and continuously thereafter, that it was being overcharged; that it was orally agreed that the parties would sit down and come to an agreement as to the proper charges for the work done and settle their accounts; that it was often reiterated that the parties would some day have a meeting to settle their accounts; and that plaintiff said that one of these days they would sit down and straighten out the bills. In our opinion, the alleged oral agreements that the parties would some day have a meeting to settle their accounts, during which time defendant was making many payments to plaintiff, are so indefinite as to have no legal significance and to amount to nothing more than agreements to negotiate in the future and to perhaps make a future agreement. These agreements are not enforcible. An agreement to agree in the future is too indefinite to be enforcible ( Ansorage v. Kane, 244 N.Y. 395, 398; St. Regis Paper Co. v. Hubbs Hastings Paper Co., 235 N.Y. 30, 36; cf. Queensboro Farm Prods. v. State of New York, 262 App. Div. 426, 427, affd. 287 N.Y. 797). The defense and counterclaim have no merit and defendant may not recover the alleged overpayments (cf. 40 Am. Jur., Payment, § 158). Beldock, P.J., Ughetta, Brennan, Hopkins and Munder, JJ. concur.