Handal v. Knepper , 269 A.D. 967 ( 1945 )

Per Curiam.

The motion to dismiss the complaint for insufficiency was properly denied, to permit development of all the facts and surrounding circumstances showing the true intention and primary purpose of the parties. If such primary purpose was to stifle competition and secure an unfair advantage the contract is illegal and unenforcible by either party (5 Williston on Contracts [Rev. ed.], § 1663; 2 Restatement, Contracts, § 517).

Accordingly the order so far as appealed from should be affirmed, with $20 costs and disbursements, with leave to the defendant to answer within ten days after service of order with notice of entry, on payment of said costs.

Martin, P. J., Dore, Cohn, Callaban and Wasservogel, JJ., concur.

Order, so far as appealed from, unanimously affirmed, with $20 costs and disbursements, with leave to the defendant to answer within ten days after service of the order with notice of entry thereof, on payment of said costs.