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MICHAEL DURA v. WALKER (04/24/69)

April 24, 1969

MICHAEL DURA, APPELLANT,
v.
WALKER, HART & CO., INCORPORATED, RESPONDENT



Concur -- Eager, J. P., McGivern, Markewich, Nunez and Steuer, JJ.

Order, entered October 28, 1968, unanimously modified, on the law and in the exercise of discretion, to provide that the plaintiff shall have 20 days from entry of order hereon to serve an amended complaint, and the order is otherwise affirmed, without costs and disbursements. There is a failure to state the "material elements" of plaintiff's cause of action in that the allegations of the complaint are insufficient to properly plead an agreement with respect to the finder's fee allegedly received by the defendant. (See CPLR 3013; cf. Foley v. D'Agostino, 21 A.D.2d 60; Shapolsky v. Shapolsky, 22 A.D.2d 91; Flamingo Telefilm Sales v. United Artists Corp., 22 A.D.2d 778; Menon v. Kennedy, 24 A.D.2d 849.) In this connection, the allegations of the complaint are but "vaguely stated" (see Shapolsky v. Shapolsky, supra, p. 92) and, in accordance with the suggestions made on the argument, it is concluded that, in the interests of justice, the plaintiff should serve an amended complaint. We do not reach the question of the application and effect of the Statute of Frauds (General Obligations Law, § 5-701, subd. 10) on the agreement which the plaintiff may eventually plead.

19690424

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