133 N.Y.S. 696 | N.Y. App. Div. | 1912
Defendant demurred to the complaint upon the ground that it failed to state facts sufficient to constitute a cause of action. Plaintiff moved for judgment on the pleadings, and from an order denying such motion appeals.
The question presented is as to the sufficiency of the complaint construing its allegations liberally with a view to substantial justice between the parties, and considering not only the express allegations therein, but such facts as may be
Respondent contends that in order to recover for time lost plaintiff should have alleged that he was found “blameless.” It will be observed that the clause requiring a hearing applies alike to suspension and discharge. It would seem that the agreement to pay for time lost must be limited to that clause of the contract relating to suspension and not to discharge. The hearing must precede the discharge, since there is no provision therefor after the contract has been terminated. It may follow the suspension. But if the provision that plaintiff should be found “blameless” before claiming compensation could by any possibility be applied to both discharge and suspension and was a condition precedent to his recovery, defendant has made the performance of this condition impossible by refusing plaintiff a hearing. Respondent also contends that it was necessary for plaintiff to plead performance on his part of all the conditions of the contract to be kept and performed by him. He does allege that “ in pursuance of said agreement ” he entered the employ of defendant and continued in its employ up to March IT, 1909. The words “in pursuance of said agreement” apply to both. If he entered “ in pursuance of said agreement ” and continued “inpursuance of said agreement” to act as yardman, he did all that the contract required him to do. He was not required to negative any claim of dereliction of duty. A complaint equally general has been held sufficient. (Williams v. Conners, 53 App. Div. 599.) After March IT, 1909, he could not perform all the conditions of his contract, because defendant would not permit him to do so. This is not an action for wages earned under a contract, but for damages for the breach
Respondent asks that, if the order be reversed, permission be given to it to withdraw its demurrer and answer. We think that respondent should be remitted to the Special Term for such relief as it desires. Having demurred, it could not withdraw the demurrer and answer as matter of right. (Cashman v. Reynolds, 123 N. Y. 138; Smith v. Laird, 44 Hun, 530; Wise v. Gessner, 47 id. 306; Kaughran v. Kaughran, 73 App. Div. 150.) If it desires as matter of favor to.withdraw its demurrer and answer, it would seem reasonable that it should satisfy the court that it has a defense upon the merits. There is nothing before us upon which we can so determine.
The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
Jenks, P. J., Thomas, Caer and Woodward, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.