PENNINGTON v. ZIMAN

Order entered on July 28, 1960, denying defendant's motion to dismiss the complaint under rule 106 and subdivision 4 of rule 107 of the Rules of Civil Practice, unanimously reversed, on the law, with $20 costs and disbursements to appellant, and the motion granted, with $10 costs, with leave, however, for the plaintiff-respondent to replead, if so advised, upon a showing by allegation of ultimate facts that a rescission of the agreement would accomplish some proper purpose, since equity will not suffer the making of a vain order. (Cf. Sivakoff v. Sivakoff, 280 App. Div. 106, 108.)

Concur — Botein, P.J., Breitel, Valente, McNally and Stevens, JJ.