Cohen v. Rosenstock Motors, Inc.

Sohreiber, J. This action is by the purchaser for specific performance of a contract of sale of a new motor car. Defendant [427] moves under rule 106 of the Rules of Civil Practice to dismiss the complaint for insufficiency, the contention being that the allegations do not make out a case in which specific performance will lie. Section 149 of the Personal Property Law (Uniform Sales Act, § 68) provides; “ Where the seller has broken a contract to deliver specific or ascertained goods, * * * a court of equity may, if it thinks fit, on the application of the buyer, by its judgment or decree, direct that the contract shall be performed specifically, without giving the seller the option of retaining the goods on payment of damages * * (Italics mine.) The language, which is a codification of the common law (Glick v. Beer, 263 App. Div. 599), clearly implies that the remedy of specific performance is available to the buyer of personal property only where the goods are specific or ascertained (“ specific goods ” being defined by the statute, § 156, subd. 1, as “ goods identified and agreed upon at the time a contract to sell or a sale is made ”). In the contract alleged in the complaint the goods agreed to be sold are described as follows: “ one new car * 0 * Make Plymouth Type Sedan Tear 1946 Color Open ”, a description Avhich makes clear that the subject matter of the sale Avas not a specific car “ identified and agreed upon at the time the contract to sell ” was made, but a sale by description of an unascertained car. All the other relevant allegations of the complaint confirm this inference. The motion to dismiss is granted Avith leave to plaintiff to serve an amended complaint, to state a cause of action at law, Avithin twenty days after service of a copy of this order with notice of entry.