Glass v. Parker

We agree with Special Term that the contract pleaded lacks mutuality, but to the extent that the complaint might allege actual performance and earning' of commissions thereunder it would be sufficient. The defect in the complaint in that respect is that the allegations of performance do not match the requirements of the contract as to the payment of commissions. The contract provides for commissions to be paid on the confirmation of orders, the arrival of merchandise in Hew York and on delivery to customers. The performance alleged is sales made by plaintiff, but nothing is alleged as to the confirmation of orders or the arrival or delivery of merchandise. The complaint was properly dismissed, therefore, but the plaintiff should have leave to amend.

The judgment should be'reversed, without costs, and the order modified by *1005granting plaintiff leave to serve an amended complaint within ten days after service of order to be entered herein and as so modified affirmed.

Martin, P. J., Townley, Glennon, Callahan and Peck, JJ., concur.

Judgment unanimously reversed, without costs, and order modified by granting plaintiff leave to serve an amended complaint within ten days after service of order to be entered herein, and as so modified affirmed. Settle order on notice.