Greenwald v. Howard Stores Corp.

In an action to recover damages for breach of a contract of employment, the plaintiff appeals from an order of the Supreme Court, Kings County, entered July 7, 1964, which denied his motion for leave to serve an “ amended ” (actually a supplemental) complaint. Order reversed, with $10 costs and disbursements, and plaintiff’s motion granted. Plaintiff may serve his amended or supplemental complaint within 30 days after entry of the order hereon. In our opinion, the denial of leave to serve the supplemental complaint was an improvident exercise of discretion. Such leave should be freely given (CPLR 3025). So far as the merits of the proposed pleading are concerned (cf. Keller v. Greyhound Corp., 41 Misc 2d 255, 256-257), the second cause of action may be read as alleging a superseding agreement (as distinguished from an executory accord) made prior to suit; such a superseding agreement would be enforeible even though not in writing (cf. Goldbard v. Empire State Mut. Life Ins. Co., 5 A D 2d 230). The fact that said cause of action is inconsistent with the first cause of action is not fatal to plaintiff’s present application (cf. Neco Distrs. Corp. v. Wilkoff, 7 A D 2d 903). Christ, Acting P. J., Brennan, Hill, Hopkins and Benjamin, JJ., concur.