Irving Epstein, Respondent, v. Bellfair Hat Co., Inc., Appellant

Irving Epstein, Respondent, v. Bellfair Hat Co., Inc., Appellant. [MAJORITY] Leave to replead is granted in the exercise of discretion. The order appealed from denied the defendant’s motion to dismiss the complaint for insufficiency or in the alternative to strike certain language in the complaint as irrelevant. The complaint, which contains five causes of action, seeks damages for breach of employment contracts. The plaintiff alleges that he was entitled to commissions of 8%% on all shipments made to various geographic territories and “8%% on all orders, reorders and shipments made to any other accounts solicited by the plaintiff.” The first four causes of action are identical except as to the time period involved. The fifth cause of action merely realleges and consolidates the prior causes and is superfluous. However, it is not alleged in the complaint that the defendant actually made shipments entitling the plaintiff to his commissions, nor can this essential fact be inferred from the other allegations, including the conelusory statement that there are moneys due and owing from the defendant to the plaintiff. In passing, it is observed that the reference to an examination before trial is patently improper. Accordingly, the complaint is insufficient and is dismissed, with leave to replead as heretofore indicated. Concur — Breitel, J. P., Rabin, McNally, Stevens and Steuer, JJ.