Opinion
July 2, 1943.
Appeal from Supreme Court, New York County.
Present — Martin, P.J., Townley, Untermyer, Dore and Cohn, JJ.
The challenged counterclaim and cross complaint alleges an oral agreement between defendant-respondent, plaintiff and the impleaded defendants, which is vague, indefinite and uncertain. From the facts set forth the full intention of the parties to the alleged contract cannot be ascertained with a reasonable degree of certainty. Such an agreement is unenforcible. ( Varney v. Ditmars, 217 N.Y. 223, 228.) The essential terms of a contract and the facts showing damage upon which the action is based must be pleaded. ( King v. Krischer Mfg. Co., Inc., 220 App. Div. 584, 585; Janvier, Inc., v. Baker, 229 App. Div. 679; Garcin v. Granville Iron Corp., 137 Misc. 648, 650.) This, the pleading attacked fails to do.
The order should be reversed, with twenty dollars costs and disbursements, and the motion to dismiss the counterclaim granted, with leave to the defendant-respondent to plead over within ten days upon payment of costs.
Order unanimously reversed, with twenty dollars costs and disbursements, and motion to dismiss the counterclaim granted, with leave to the defendant-respondent to plead over within ten days after service of order, on payment of said costs.