Frank Export-Import Corp. v. Elof Hansson, Inc. , 2 A.D.2d 877 ( 1956 )

The amended complaint alleges that plaintiff was to procure a customer for the defendant who was ready, able and willing to purchase newsprint at specified prices f.o.b. Bremen and/or Antwerp. The allegations of performance on plaintiff’s part are that he procured a pm’chaser at the requested prices, nothing being alleged as to the f.o.b. feature. Plaintiff asserts that paragraph 11 of the complaint sufficiently alleges the inclusion of that term in the undertaking the purchaser was ready, able and willing to assume. But the reference in that paragraph to the “ terms aforesaid ” is equivocal, and it is not clear that the allegation encompasses more than the terms set forth in paragraph 8 of the complaint, which makes no reference to the f.o.b. provision. The complaint would not be sufficient unless it alleged that the f.o.b. term was included in the undertaking of the purchaser. Order unanimously reversed, with $20 costs and disbursements to the appellant, the motion granted and the complaint dismissed with leave to the plaintiff to replead. Concur — Peek, P. J., Breitel, Cox, Frank and Bastow, JJ.