
    Sol Behn, Plaintiff, v. Lincoln National Bank and Trust Company of Central New York, Defendant.
    Supreme Court, Onondaga County,
    June 1, 1960.
    
      Bond, Schoeneck King for defendant. John J. Mahon for plaintiff.
   John H. Farnham, J.

This is a motion to dismiss the complaint in an action to recover damages for breach of contract.

Defendant’s motion is made under rule 106 of the Rules of Civil Practice and is directed to the claim that the complaint fails to allege facts sufficient to constitute a cause of action.

Upon motion to dismiss a complaint upon the ground that it does not state facts sufficient to constitute a cause of action, ‘ ‘ ‘ every intendment and fair inference is in favor of the pleading ’ ”. (Dyer v. Broadway Cent. Bank, 252 N. Y. 430, 432.) The alleged contract or option, as it is termed by defendant, in the opinion of the court very well might be proven as a valid contract upon the trial of this action after applying to it the foregoing rule. Even if technically on its face the alleged contract may be an option, the plaintiff in relying on it, still might be in a position to penetrate the Statute of Frauds, and thereby prove that the document in question is a valid contract. (Ant v. Drug Prods. Co., 7 Misc 2d 471.)

It also appears that the defendant actually did agree to perform some act under the instrument which is the subject of this action and motion. Also, it would seem to he unfairly inconsistent that the defendant did not agree to pay the consideration merely because the instrument did not so provide expressly and yet later in the same instrument there is an express promise and obligation on the part of the defendant to extend plaintiff’s time from January 31, 1959, to February 28, 1959, for him to vacate the subject premises if conditions were such that plaintiff was unable to vacate them on January 31. Here is a clear-cut affirmative agreement expressed in said instrument on the part of the defendant. Under the foregoing rule 106 of the Rules of Civil Practice, as stated, the plaintiff is entitled to every fair inference of construction, and until proven otherwise the truth of the allegations of the complaint must be assumed. Under these circumstances, it would be unfair to deny the plaintiff in this case his day in court.

Defendant’s motion to dismiss the complaint is denied, without costs.  