
    Jeanne Carpenter and Another, Plaintiffs, v. Foundation Company, Defendant.
    
    Supreme Court, New York Special Term,
    February 18, 1924.
    Pleadings — complaint — action on contract annexed to complaint —• sufficiency of complaint determined by examination of annexed agreement — contracts —■ alleged option construed to be offer to make option.
    The sufficiency of a complaint, to which is annexed an agreement in an action upon a contract, must be determined by an examination of the said agreement, in the absence of facts pleaded to aid in its interpretation.
    The offer of the plaintiffs’ assignor in said action should be construed to be an offer to make an option, rather than an agreement to exercise the option, where the word “ accepted,” subscribed thereon by the defendant, constitutes merely an acceptance of the correctness of the statements of the terms of the option.
    Motion to dismiss the complaint, under rule 106 of the Rules of Civil Practice.
    
      S. A. Lowenstein, for the plaintiffs.
    
      White & Chase, for the defendant.
    
      
      Affd., 211 App. Div. 846.
    
   Tierney, J.:

The complaint alleges that a copy of the agreement is annexed to the complaint. This limits the question of whether an agreement was made to an examination of the exhibit annexed to the complaint. There are no surrounding circumstances pleaded to aid in the interpretation. The offer of the plaintiffs’ assignor was no more than the tender of an option. The option would have to be exercised to constitute proof of a contract. The word “ accepted,” subscribed by the defendant, in view of the statement of the offer that it is a memorandum of the understanding of the writer of the outcome of conferences, “subject to your immediate acceptance,” constitutes merely an acceptance of the correctness of the statement of the terms of the option, not an agreement to exercise the option.

The complaint does not state facts sufficient to constitute a cause of action, and the motion, under rule 106, to dismiss the same, is granted, with ten dollars costs of the motion, with leave to serve an amended complaint within ten days after service of notice of entry of the order hereon on payment of said ten dollars costs and ten dollars costs of the action.  