Neco Distributors Corp. v. Wilkoff

Order denying defendant’s motion for judgment on the pleadings unanimously reversed, on the law, and the motion granted, with costs to appellant, with leave, in the exercise of discretion, to plaintiff to replead. The complaint, inartful in its allegations, sets forth an executory accord which, from the evidentiary allegations, would appear to lack a writing to evidence it. As such, it would be insufficient (Personal Property Law, § 33-a). However, plaintiff should be afforded the opportunity of pleading a *904cause of action based on the precedent agreement if, in fact, the accord is unenforeible; and, perhaps, also to replead a cause of action based on the accord, if he is in a position to allege one that would be sufficient under the statutes. Moreover, if, as plaintiff contends in its brief in this court, it relies upon a substituted agreement, as distinguished from an accord, it should plead such in proper form (Blair é Co. v. Otto V., 5 A D 2d 276; cf. Goldbard V. Empire State Ins. Co., 5 A D 2d 230). Concur—Botein, P. J., Breitel, M. M. Frank, McNally and Stevens, JJ.