Contracts · MBE-tested
Charles A. Brandman et al., Respondents-Appellants, v. Robert H. Ringel, Appellant-Respondent
273 A.D. 1002·New York Supreme Court, Appellate Division·1948·NY
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Opinion
Charles A. Brandman et al., Respondents-Appellants, v. Robert H. Ringel, Appellant-Respondent.
[MAJORITY]
The allegations of the complaint which defendant contends makes the contract sued upon illegal and unenforeible are not essential to the complaint and the cause of action alleged, so it was proper to give plaintiffs leave to serve an amended complaint. Whether the illegality is collateral to the contract and not a bar to maintenance of the action (Bosaseo Creameries, Inc., v. Cohen, 276 N. Y. 274) or an integral part of the contract which should bar its enforcement (Strum v. Truly, 245 App. Div. 357) may await the showing at the trial. Order appealed from unanimously affirmed, without costs, and with leave to the plaintiffs to serve an amended complaint within ten days after entry of order. Present — Peck, P. J., Dore, Cohn, Callahan and Van Voorhis, JJ.