Mark Kyler, Appellant-Respondent, v. United States Trotting Association, Respondent-Appellant, and Buffalo Trotting Association, Inc., Respondent, 21 A.D.2d 742

Order unanimously modified to permit plaintiff leave to serve an amended complaint against Buffalo Trotting Association, Inc., within 20 days after service of a copy of the order with notice of entry thereof, and as modified order affirmed and the judgment entered thereon vacated, without costs of these appeals to any party. Memorandum: It is clear plaintiff cannot recover against Buffalo Trotting Association, Inc., in tort for procuring a breach of contract. Counsel argued that the complaint was broad enough to sustain a cause of action for breach of contract based upon a novation.

In the interest of justice we grant leave to serve an amended complaint. (Appeal from judgment of Brie Special Term dismissing the complaint as to Buffalo Trotting Association and also from order dismissing the complaint; also cross appeal by United States Trotting Association from that part of the order which grants plaintiff leave to serve an amended complaint as against it.) Present—'Williams, P. J., Bastow, Henry, Noonan and Del Veechio, JJ.