Miglietta v. Kennecott Copper Corp.

The complaint is framed to recover damages for breach of a written agreement for the exploitation, as a joint venture, of certain asbestos deposits located in Greece. Since a copy of the agreement is annexed to and made a part of the complaint, ‘ ‘ the rights and duties of the parties must be determined by the terms of the contract annexed to the com*58plaint, and not by the plaintiff’s characterization or construction thereof in his pleading.” (3 Carmody-Wait, New York Practice, p. 569.) “ [T]ke rights of the parties thereunder must be determined by the terms of that instrument without the aid…