The defendant made no attempt here or at Special Term to sustain the matter pleaded by way of defense and states that the counterclaim pleads a cause of action for unfair competition and nothing else. The allegations do not establish the necessary confidential relation between the parties carrying with it, on the part of the plaintiff, the obligation to refrain from the unfair competition complained of. However, paragraph 19 sets forth vague allegations in respect of an agreement to refrain from such unfair competition. The latter allegations are not sufficiently specific to sustain the counterclaim. Accordingly, we hold that the order to the extent appealed from should be modified to provide for the dismissal of the counterclaim, with $20 costs and disbursements to the appellant, with leave to the defendant to serve an amended pleading setting forth ultimate facts specifically alleging its claim for unfair competition. Settle order on notice.
Concur — Peck, P.J., Botein, Frank, Valente and McNally, JJ.