Booz v. Cleveland School Furniture Co.

61 N.Y.S. 407 | N.Y. App. Div. | 1899

Ingraham, J.:

The complaint alleges two causes of action, to which the defendant interposed a demurrer, upon the ground that neither states facts sufficient to constitute a cause of action. The court sustained the demurrer as to the first cause of action and overruled it as to the second. Tlie defendant appeals from the judgment, so far as it overrules the demurrer.

The second canse of action must be considered by itself without reference to any of the allegations contained in the first cause of action. The second cause of action alleges that on November 2,. 1896, the plaintiff entered into a contract, with the defendant, a foreign corporation, which contract was to exist and remain in full force and effect for the term of five years; “ that by the acts of said defendant the plaintiff has been prevented from carrying out his. part of the contract, and for the breach of said contract by the-said defendant the plaintiff has been damaged in the sum of eight thousand dollars ($8,000:00)” and the plaintiff demands judgment to recover the said sum. There is annexed to the complaint, a. 'contract marked “ A,” but as this contract is not referred to-in. the second cause of action it cannot be considered in determining this question. A demurrer upon the ground that facts sufficient to constitute a cause of action are not alleged can be sustained only when it appears that, after admitting all the facts alleged oy that can by reasonable and; fair intendment be implied1 from them, the complaint fails to state a cause of action. Under the- more recent authorities pleadings are not to be construed strictly against the pleader, but averments which sufficiently point out the nature of the pleader’s claims are sufficient, if under them he would be entitled to give the necessary evidence to establish his cause of action. (Coatsworth v. Lehigh Valley R. Co., 156 N. Y. 457.) But even allowing for the most liberal application of the rules-we. do not think that there are facts here alleged, or which may he- implied from wffiat are alleged, that would sustain a recovery. The complaint must allege facts, not conclusions, which, if proved, would entitle the plaintiff to a judgment. It is alleged that- the plaintiff entered into a contract with the defendant. The nature of"the contract is not alleged. The obligations assumed by either party are not stated. No consideration is alleged; and no facts, are stated which would support a finding that there was any consideration for the contract. The contract upon which the claim to recover is based is not so identified as to justify a court in receiving evidence as to the execution of any particular contract upon the trial; or that by a contract any obligation was imposed upon either the plaintiff or the defendant. The allegation is so indefinite and uncertain that no obligation of the defendant could be implied from it. There is no allegation that the plaintiff performed the contract on his part, or offered to perform, or was ready and willing to perform, and no allegation.that the defendant failed to perform the contract on its part, or that there was a breach of the contract. The allegation that by the acts .of the defendant the plaintiff had been prevented from carrying out his part of the contract is not a sufficient allegation of a breach by the defendant. The allegation is a mere conclusion, as the particular acts of the defendant from which the plaintiff drew that conclusion are not pleaded ; and the further allegation that by a breach of the said contract by the defendant the plaintiff has been damaged in the sum of $8,000, does not allege that there was a breach by the defendant, but is merely an allegation of damage. Courts have gone to a great length in sustaining pleadings where the allegations of fact are sufficient to show to a defendant just what facts are relied on by the pleader to sustain his right to a recovery, but no case has gone so. far as to hold that the mere allegation of indebtedness is sufficient to sustain a cause of action; and this second cause of action is little more than such a general allegation of an indebtedness because of damages sustained in consequence of a breach of some agreement between the parties, the terms and nature of which are not specified.

We think, therefore, that this second cause of action did not state facts sufficient to constitute a cause of action, and that the demurrer should have been sustained. The judgment must, therefore, be reversed, with costs to the appellant, and the demurrer sustained, with costs, with leave to the respondent to amend the Complaint upon payment of such costs.

Van Brunt, P. J., Patterson, O’Brien and McLaughlin, JJ., concurred.

Judgment reversed, with costs, and demurrer sustained, with costs, with leave to the respondent to amend on payment of costs in this court and in the court below.