Clayco Foods, Inc. v. Service Terminals, Inc. 29 A.D.2d 645

Order, entered July 7, 1967, denying defendants’ application for judgment dismissing the first and third causes of action on the ground of insufficiency, and for summary judgment dismissing the complaint as to the individual defendants, unanimously reversed, on the law, with $50 costs and disbursements to appellants, and the motion granted. The first cause of action is dismissed with leave to plaintiff to apply to Special Term for permission to serve an amended complaint. (Cushman & Wakefield v. John David, Inc., 23 A D 2d 827, 25 A D 2d 133; CPLR 3211, subd. [e]; Andlou Props, v. Grcuyck, 24 A D 2d 716; Cyg-Knit Mills v. Denton Sleeping Garment Mills, 26 A D 2d 800.) The allegations in the affidavit of plaintiff’s president suggest that in prior oral negotiations plaintiff in effect agreed to have all of its warehousing needs supplied by defendant corporation and no other corporation. The said cause of action fails to so allege. The documents incorporated in the first cause of action do not spell out a mutually binding obligation. The third cause of action fails to allege any omission or act of commission except a breach of contract. (See Albemarle Theatre v. Bayberry Bealty Gorp., 27 A D 2d 172.) In addition, it fails to allege special damages. (Morrison v. National Broadcasting Co., 19 N Y 2d 453, 458.) The complaint is dismissed as to the individual defendant on the ground.that it appears the basic contracts were entered into by the individual in behalf of a disclosed principal, the defendant corporation. (Ell Dee Clothing Co. v. Ma/rsh, 247 N". Y. 392.) Concur — Botein, P. J., Stevens, Capozzoli, McGivern and McNally, JJ.