SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
November 7, 1968
ROBERT KILGOUR, RESPONDENT,
TENNEY CORPORATION, APPELLANT
Concur -- Botein, P. J., Eager, Steuer, Capozzoli and McGivern, JJ.
The sparse information in the record concerning the underlying transaction makes it difficult to determine the precise nature of plaintiff's cause of action. As the record now stands, most of the court would hold that at best an action for damages may perhaps be maintainable, while there is some view that a trial on the present complaint might possibly develop facts tending to support the relief demanded. In the circumstances it is concluded that plaintiff should be given an opportunity to obtain leave to amend his complaint by providing Special Term with "some evidentiary showing that the claim can be supported" (Cushman & Wakefield v. John David, Inc., 25 A.D.2d 133, 135).
Order, entered on July 2, 1968, denying defendant's motion to dismiss the complaint in this action for specific performance, unanimously reversed, without costs or disbursements, on the law, motion granted and complaint dismissed, with leave to plaintiff to apply at Special Term for vacatur of the dismissal and permission to serve an amended complaint if he be so advised.
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