In an action to restrain appellant from selling or disposing of houses constructed by him except through the real estate agency of the respondent, as alleged to be required by a written contract between the parties, order denying appellant's motion to dismiss the complaint for insufficiency under rule 106 of the Rules of Civil Practice, and granting respondent's motion to strike out the second affirmative defense set up in appellant's answer, reversed on the law, with $10 costs and disbursements, and appellant's motion to dismiss for insufficiency granted, with $10 costs. In our opinion the alleged contract upon which the action is based is too vague and indefinite to be enforced. It does not set forth the full intention of the parties with such certainty and explicitness that the intention of the parties may therefrom be ascertained with a reasonable degree of certainty. Moreover, the provision in the contract that it should terminate upon the mutual consent of the parties is mere surplusage, and the contract, without a term of its duration, was terminable at will. ( Petze v. Morse Dry Dock Repair Co., 125 App. Div. 267, 270, affd. 195 N.Y. 584; Varney v. Ditmars, 217 N.Y. 223, 228; Ansorge v. Kane, 244 N.Y. 395, 398; St. Regis Paper Co. v. Hubbs Hastings Paper Co., 235 N.Y. 30, 36; Schlegel Mfg. Co. v. Cooper's Glue Factory, 231 N.Y. 459, 462; Clark Paper Mfg. Co. v. Stenacher, 236 N.Y. 312, 316.) Carswell, Acting P.J., Johnston, Adel, Sneed and Wenzel, JJ., concur.