
    Savoy Record Company, Inc., Plaintiff, v. Cardinal Export Corp., et al., Defendants.
    Supreme Court, Special Term, New York County,
    October 11, 1962.
    
      
      Walter Hofer and Thomas R. Levy for plaintiff. Mortimer G. Levine for Cardinal Export Corp., defendant.
   Vincent A. Lupiano, J.

Defendant Cardinal Export Corp. moves for dismissal of the complaint for legal insufficiency. In the first cause of action plaintiff seeks the recovery against the moving defendant as guarantor of the minimum royalties due under the written agreement and by the second cause of action the recovery of damages resulting from breach of the agreement. The writing provided that This agreement will not go into effect until the sum of two thousand five hundred dollars ($2,500.00) shall be paid as hereinafter provided.” There is no allegation that this precondition was performed. The agreement was signed by the plaintiff and accepted and approved by the moving defendant “ As Agent on Behalf of Armonía E. Bitmo.” The writing also provided 6. You represent and warrant that Cardinal Export Corp., New York, New York, is authorized to sign this agreement on your behalf as your agent, and Cardinal Export Corp., for One Dollar ($1.00) and other good and valuable consideration agrees by its signature to guarantee the payment of all moneys payable to Savoy Becord Company, Inc., by you under the contract dated May 1, 1960, and this agreement.” Accordingly, the writing must be deemed at least as a matter of pleading to bind the moving defendant, as guarantor. However, by reason of the failure properly to allege performance of the precondition of the agreement, the complaint is insufficient. The agreement also designates and appoints Cardinal Export Corp. as the agent of Armonía E. Bitmo for the service of process in the State of New York in connection with any controversy, dispute or legal proceeding of any kind or nature arising under the agreement and consent to personally appear here was given.

Accordingly, the motion is granted dismissing the complaint and, since the identity of the party intended and designated as the defendant Cardinal Export Corp. as agent on behalf of Armonía E. Bitmo is made manifest, an amended complaint may be served within 20 days from service of a copy of this order with notice of entry in which the name of the defendant may be amended to Armonía E. Bitmo.  