
    Robert Hayes et al., Respondents, v. Duane Jones Company, Inc., Appellant.
   Appeal from that part of an order of the Supreme Court at Special Term, entered March 27, 1952, in New York County, which denied a motion by defendant for an order to dismiss the complaint pursuant to rule 106 of the Rules of Civil Practice and for judgment on the pleadings pursuant to rule 112 of the Rules of Civil Practice.

Per Curiam.

The complaint does not allege that the class B ” stock has any book value as shown by the books of account of the company audited by its accountants, nor does it even set forth that the books were ever audited. Because of the contract provision set forth in the complaint to the effect that appellant is to pay to the holder of each share of B ” stock the book value thereof as shown by the books of account of the Company audited by its accountants ”, the pleaded conclusion that defendant’s book value amounted to at least $100 per share of class “ B ” stock does not sufficiently charge a breach of contract or damages thereunder.

The order should accordingly be reversed, with $20 costs and disbursements to appellant, and the motion to dismiss the complaint for insufficiency should be granted, with costs, with leave to plaintiff to serve an amended complaint within ten days after service of a copy of the order entered hereon and upon payment of said costs.

Peek, P. J., Cohn, Van Voorhis and Bergan, JJ., concur.

Order unanimously reversed, with $20 costs and disbursements to appellant, and the motion granted, with $10 costs, with leave to the plaintiffs to serve an amended complaint within ten days after service of a copy of the order, with notice of entry thereof, upon payment of said costs and disbursements.  