Karl v. Mobil Oil Co.

Order unanimously modified in accordance with memorandum, with costs to defendant, and, as modified, affirmed. Motion to strike material from respondent’s brief denied. Memorandum: The motion to add a new cause of action for fraud by service of a supplemental complaint should have been denied because that cause of action is palpably insufficient. The contract for the sale of gasoline by the defendant to the plaintiff expressly provides that “[quantities shall be computed without temperature adjustment.” The failure of defendant to inform plaintiff that defendant’s supplier, in billing defendant, made an allowance for shrinkage due to temperature, does not constitute fraud by concealment, since defendant was under no obligation to reveal this information (see 24 NY Jur, Fraud and Deceit, § 114). That portion of the supplemental complaint alleging additional deliveries of gasoline and additional shortages after the service of the original complaint is *993proper. The order appealed from should be modified by deleting the first and second ordering paragraphs and ordering instead that the plaintiff is granted leave to serve a supplemental complaint supplementing the cause of action set forth in the original complaint and that the plaintiff is denied leave to serve a supplemental complaint containing the new cause of action alleged in paragraphs 3 through 13 (and paragraph 2 of the “Wherefore” clause) of the proposed supplemental complaint. (Appeal from order of Supreme Court, Cattaraugus County, Crowley, J. — supplemental complaint.) Present — Hancock, Jr., J. P., Doerr, Denman, Boomer and Schnepp, JJ.