207 A.D. 750 | N.Y. App. Div. | 1924
Objection was made to the complaint under rule 106 of the Rules of Civil Practice that it did not contain facts sufficient to constitute a cause of action. In the alternative to dismissal, defendant requested the relief that the complaint be made more definite and certain under rule 102 of the Rules of Civil Practice. The court at Special Term declined to dismiss the complaint or direct that it be made more definite and certain.
The action arises out of a contract which contains the following clause:
“ Sixth. In the event that the party of the second part shall remain in the employ of the party of the first part during the full five-year term of this agreement, the party of the first part agrees to pay him an additional one (1%) per cent, of the aggregate amount of business during the said five (5) years upon which the two (2%) per cent, commission is payable under paragraph fourth ’ hereof.”
Obviously there is nothing here but conclusory statements of what the contract provides. The allegation that certain sums of money due the deceased as compensation for services rendered to the defendant have not been paid is not predicated upon any obligation which is declared. While it is unnecessary to set forth the contract in full, or to annex it to the complaint, the provision of the contract upon which compensation is claimed to have been earned, or its terms in substance, must be set out to make a logical premise for the conclusion that anything is due. The complaint does not state a cause of action and should have been dismissed.
The order should be reversed, with ten'dollars costs and disbursements, and the motion to dismiss the complaint for insufficiency granted, with ten dollars costs, with leave to plaintiff to serve an amended complaint within ten days upon the payment of said costs.
Clarke, P. J., Dowling, Finch and Maetin, JJ., concur
Order reversed, with ten dollars costs and disbursements, and motion for judgment dismissing the complaint granted, with ten dollars costs, with leave to plaintiff to serve an amended complaint within ten days from service of order upon payment of said costs.