Opinion
December 27, 1932.
Appeal from the City Court of New York, New York county.
Schmer Wechsler [ Joseph J. Mintzes of counsel], for the appellant.
Beardsley Taylor [ Jacob H. Goetz, William L. Ranson, Charles I. Taylor and Edwin D. Kyle, Jr., of counsel], for the respondent.
If plaintiff relies upon an actual promise or undertaking by defendant, it should plead the facts plainly and concisely, and eliminate from the cause of action all reference to duties supposed to be imposed by law.
Order modified by granting leave to plaintiff to serve an amended complaint within six days after service of order entered hereon, and, as modified, affirmed, with disbursements to plaintiff. Upon service of amended complaint, judgment vacated; and, in default of service of such amended pleading, judgment affirmed, with costs.
LYDON and FRANKENTHALER, JJ., concur; LEVY, J., dissents.