(dissenting). On a motion of this character the facts pleaded are deemed admitted and every legitimate inference must be resolved in favor of the pleading in determining whether a cause of action is stated. The substance of the complaint is that the defendant agreed to sell to the plaintiff for a period of a year the product of the defendant’s manufacture, consisting of buckles and novelties at prices then and there stated and subsequently to be established during the course of the business relations of the parties. Pursuant to this agreement the plaintiff obligated herself to purchase from the defendant a quantity of such merchandise. The fair intendment of these allegations is, I think, that the parties had definitely agreed upon the prices of all merchandise at the commencement of the contract and that later prices were to be established by some other means. This might have been by prevailing market prices or other means which plaintiff was not required to set forth in detail.
While the plaintiff does not state the specific quantity of the defendant’s manufacture that she was to take, it does not necessarily follow that the quantity was indefinite. Information as to exact quantity, prices then and there stated and the manner by which subsequent prices were to be established may be secured by way of bill of particulars. After the complaint has been thus amplified, it may or may not set forth a contract.
I dissent, therefore, and vote for affirmance, as I believe the complaint when fairly construed states a cause of action.
Merrell, J., concurs.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to plaintiff upon payment of said costs to apply at Special Term for leave to serve an amended complaint.