Wehringerv.West Publishing Company Inc.

Appellate Division of the Supreme Court of New York, First DepartmentOct 14, 1976
54 A.D.2d 638 (N.Y. App. Div. 1976)

October 14, 1976

Order, Supreme Court, New York County, entered May 20, 1976, dismissing the complaint for failure to state a cause of action, unanimously affirmed, without costs and disbursements. In May 1975, the defendant sent an unordered, updated edition of its Federal Rules of Civil Procedure to the plaintiff who had ordered, received and paid for an earlier edition in 1972. The latter notified the defendant that he was treating the new book as an unconditional gift under subdivision 2 of section 396 Gen. Bus. of the General Business Law and subdivision 1 of section 5-332 Gen. Oblig. of the General Obligations Law. The single billing by the defendant thereafter, established by the affidavits on the motion to dismiss, does not constitute the continued sending of bill statements required by the General Obligations Law to warrant its injunctive relief, whether or not the sending of such a book under the circumstances here would qualify as an unconditional gift.

Concur — Kupferman, J.P., Birns, Capozzoli, Lane and Lynch, JJ.