
    Antonio Lauria, Respondent, v. Jaburg Brothers, Inc., Appellant.
   Order denying defendant’s motion for judgment on the pleadings reversed upon the law and the facts, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to plaintiff to plead over within ten days upon payment of such costs. The complaint is defective in that, viewed as an action for damages for breach of a contract, there is no allegation of performance on the part of the plaintiff and there are no requisite allegations to sustain it on the theory of rescission. (Hedges v. Pioneer Iron Works, 166 App. Div. 208.) Lazansky, P. J., Young, Hagarty, Seeger and Carswell, JJ., concur.  