Opinion
June 20, 1960
In an action for specific performance of a contract under which defendants agreed to furnish to plaintiff a complete system for retailing gasoline and motor fuels to the general public, to lend to plaintiff the equipment constituting such system, and to supply plaintiff with gasoline therefor, defendants appeal from a judgment of the Supreme Court, Rockland County, entered April 22, 1959, in favor of plaintiff, after trial before an Official Referee. Judgment affirmed, with costs. No opinion. Beldock, Acting P.J., Christ, Pette and Brennan, JJ., concur; Ughetta, J., dissents and votes to reverse the judgment and to dismiss the complaint, with the following memorandum: Plaintiff operates two gasoline pumps in connection with his refreshment stand business. Defendants are distributors of gasoline in the county. During the contract period there came into existence a new type of gasoline pump designed to mix gasoline with octane concentrate in variable proportions. The complaint demands, and the judgment directs, that defendants at their expense install and lend to plaintiff such new type pump and its associated equipment, and supply plaintiff with the octane concentrate. Neither the new type pump, nor the octane concentrate, is referred to in the contract. At all times defendants have continued to lend equipment to plaintiff and to supply him with gasoline, in compliance with the contract. The court may not enlarge the terms of the contract beyond the intent of the parties thereto ( Mandel v. Liebman, 303 N.Y. 88, 95).