
    First Department,
    March, 1932.
    Mozart Verein von New York, Appellant, v. Yorkville Square Club, Inc., Respondent.
   Per Curiam.

Only the first counterclaim remains for decision due to stipulation of the parties as to the second, third, fourth -and fifth counterclaims. We conclude that the first counterclaim is not sufficiently pleaded to charge a liability to plaintiff for failure to exercise an option to purchase the property on which defendant had made improvements relying thereon. No fraud, misrepresentation, overreaching or other tortious act or violation of contractual duty is charged in the counterclaim and thus no fault of plaintiff is alleged to have caused the loss. So much of the order as denies the motion to dismiss the first counterclaim should be reversed, with ten dollars costs and disbursements, and the motion granted as to said counterclaim, with leave to defendant to plead over with respect-thereto, on payment of said costs. Pursuant to stipulation of the parties, the appeal as to the second, third and fourth counterclaims is withdrawn, with leave to plaintiff to reply to said counterclaims; and so much of the order as denies the motion to strike out the fifth counterclaim and to dismiss the same is reversed, and the motion with respect thereto granted, without leave to amend said counterclaim, Present — Finch, P. J., Merrell, McAvoy, Sherman and Townley, JJ. Order in so far as it denies the motion to dismiss the first counterclaim reversed, with ten dollars costs and disbursements to the appellant, and the motion granted as to said counterclaim with leave to the defendant to plead over with respect thereto within twenty days from service of order upon payment of said costs. Appeal as to the second, third and fourth counterclaims withdrawn, with leave to plaintiff to reply to said counterclaims within twenty days from service of order. Order in so far as it denies the motion to strike out the fifth counterclaim and to dismiss the same reversed and the motion with respect thereto granted without leave to amend the said counterclaim.  