Russell Taylor et al., Copartners Doing Business under the Name of Falcon Plastics Co., Respondents, v. Seymour Cowit, Appellant, 20 A.D.2d 699

Order, entered on or about August 30, 1963, denying defendant-appellant’s motion to dismiss the amended complaint for failure to state a cause of action or, in the alternative, to strike certain paragraphs of the amended complaint as frivolous, irrelevant and unnecessary, or prejudicial, unanimously modified, on the law and in the exercise of discretion, to the extent of striking paragraphs 20 and 21 of the amended complaint with leave to plaintiffs-respondents to replead, otherwise the order is affirmed, without costs.

Plaintiffs claim that defendant, acting for a corporation, induced them to purchase machinery from the corporation with the false promise that the corporation would in turn purchase from plaintiffs enough of the produce of the machinery to permit plaintiffs to make agreed installment payments. Since the complaint in substance alleges that the promissory statement was made with knowledge that it would not be carried out, fraud is adequately pleaded (see Adams v. Clark, 239 N. Y. 403; 24 N. Y. Jur., Fraud and Deceit, §§ 53-59).

Moreover, defendant agent, who allegedly acted for the corporate seller, would be responsible for any false representation he made on behalf of the corporation even though he may not have profited (see Kathleen Foley, Inc. v. Gulf Oil Corp., 12 A D 2d 644, 645, affd. 10 N Y 2d 859; Laska v. Harris, 215 N. Y. 554; Stell Mfg. Corp. v. Century Ind., 15 A D 2d 87, 90; 2 N. Y. Jur., Agency, § 290).

Since the decision of Special Term on the motion dismissing the original complaint gave plaintiffs leave to serve an amended complaint without reference to the prior judgment granting recovery against the corporation, paragraphs 20 and 21 of this amended complaint should be eliminated. Leave to replead is granted since plaintiffs might wish to allege generally that they have not yet recovered damages. Concur — Botein, P. J., Breitel, Valente, McNally and Bastow, JJ. [41 Misc 2d 54.]