In an action to recover certain monthly payments alleged to be due under a contract between plaintiff and defendant’s testator, order dismissing the plaintiff’s complaint on the merits and the judgment entered thereon reversed upon the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. The rights of the parties under one or both of the agreements mentioned in the record must be determined on a trial and not as a matter of pleading. In the action of Stoneham v. Bondy (248 App. Div. 787), this court did not decide as a matter of law that
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the second agreement canceled the first agreement. What was said there relates to the state of the record at that time and determines merely the sufficiency of the pleadings. If plaintiff find it necessary to amend the complaint, relief accordingly may be sought. Lazansky, P. J., Carswell, Davis, Adel and Taylor, JJ., concur.