Howard Stores Corp. v. Pope

In order to state a cause of action plaintiffs would have to allege that Pope, because of ignorance on his part of the inflammable nature of the material, was induced to forego precautions that he would have taken had the cans been properly labeled. The present complaint lacks a definite allegation to that effect. Although the court has twice pointed out the defect, it is still present in this, the third complaint. Accordingly, the second amended complaint is dismissed without leave to replead. Order unanimously reversed, with $20 costs and disbursements to the appellant, the motion granted, and judgment is directed to be entered in favor of the appellant dismissing the complaint herein, with costs. Concur — Breitel, J. P., Bastow, Botein, Rabin and Cox, JJ.