Turner v. Malverne Building Co.

Order denying defendant’s motion for summary judgment dismissing the complaint pursuant to rule 113 of the Rules of Civil Practice modified by dismissing the second cause of action alleged in the complaint and by inserting therein a direction that the receiver be made a party defendant and be served with an amended or supplemental complaint as the nature of the case may require Within ten days after service of the order as entered, and as so modified affirmed, without costs. We are of opinion that the showing as to the first cause of action is insufficient upon which to predicate summary judgment dismissing it. The second cause of action, however, is premature in the light of the provisions of the written contract eoncededly executed by the plaintiff subsequent to the alleged oral agreement upon which recovery is sought. The claim of lack of consideration for the making of this subsequent contract is untenable as commissions thereunder were doubled for “ water front ” property. Under these circumstances this causé of action Should be eliminated prior to the trial. (Civ. Prac. Act, § 476; Koppel Industrial C. & E. Co. v. Portalis & Co., Ltd., 205 App. Div. 144; Valentine v. Perlman, 216 id. 548, 551.) Hagarty, Carswell, Scudder, Tompkins and Davis, JJ., concur.