Order entered February 10, 1970 granting motion to dismiss the first cause of action of the amended complaint with leave to serve a second amended complaint unanimously modified on the law and the facts, and in the exercise of discretion, with leave, however, to the plaintiff to apply at Special Term on adequate papers for leave to replead, and as so modified, affirmed, without costs and without disbursements. On such application plaintiff shall submit a proposed pleading supplying the deficiencies and evidentially demonstrate the cause of action is well grounded. (Cushman é Wake-*926field v. John David, Inc., 25 A D 2d 133, 135.) Concur — McGivem, J. P., Markewich, McNally and Tilzer, JJ.