McCarthy v. Fitzgerald

139 N.Y.S. 950 | N.Y. Sup. Ct. | 1912

WHITMYER, J.

[1] The complaint alleges:

“That the defendant is indebted to the plaintiff in the sum of $1,609.78 on an account for goods, wares, and merchandise, consisting of lumber sold and delivered to the defendant at Saratoga, N. Y., on the 16th day of November, 1907, and on the 17th day o£ December, 1907, at his special instance and request, at prices agreed upon and for which the defendant promised to pay.”

It also alleges:

“That said lumber so sold and delivered as aforesaid was reasonably worth the said sum of $1,609.78, so charged therefor; that no part of said account ■has been paid, except that there has been credited to said defendant to apply on said account the sum of $1,457.36, and there is now justly due and owing this plaintiff from said defendant the sum of $152.42, with interest thereon since the 3d day of October, 1908.”

The complaint does not state facts showing that the lumber was sold and delivered by the plaintiffs to the defendant, or, if sold by another, that the claim therefor has been assigned to plaintiffs, nor does it state that defendant’s promise to pay therefor was made to plaintiffs. It does not show any connection between the parties, except that it states that the defendant is indebted to the plaintiffs.

The complaint in an action must contain a plain and concise statement of the facts constituting the cause of action. Code Civ. Proc. -§ 481, subd. 2. It is incumbent upon a plaintiff to allege sufficient facts to show that he is concerned with the cause of action averred, and is the party who has suffered injury by reason of the acts of ■defendant. In other words, it is not enough that he alleges a cause of action existing in favor of some one. He must show ethat it exists in favor of himself. Cyc. vol. 31, p. 102; Weichsel v. Spear, 47 N. Y. Super. Ct. 223, affirmed 90 N. Y. 651; Ralli v. Equit. Mut. Fire Ins. Co., 16 Misc. Rep. 357, 38 N. Y. Supp. 87.

[2, 3] A demurrer admits the truth of all the facts alleged and such Inferences as may reasonably and fairly be drawn therefrom, but does not admit conclusions of law. Baylies on Code Pleading and Practice, p. 340; Greeff v. Equitable Life Assurance Society, 160 N. Y. 19, 29, 54 N. E. 712, 46 L. R. A. 288, 73 Am. St. Rep. 659. And a defendant, by moving for judgment on the pleadings, admits every material allegation of the complaint. Clark v. Levy, 130 App. Div. 389, 114 N. Y. Supp. 891. _

_ [4] The allegation here is one of indebtedness only, and no facts are stated from which the inference or conclusion that defendant is indebted to plaintiff may reasonably and fairly be drawn. An allegation of indebtedness, however, is not an allegation or statement of a fact, but of a conclusion of law, and is insufficient to sustain a cause of action. Sampson v. Grand Rapids School Co., 55 App. Div. 163, 66 N. Y. Supp. 815; Tate v. American Woolen Co., 114 App. Div. 106, 99 N. Y. Supp. 678; Nealis v. Marks (Sup.) 96 N. Y. Supp. 740.

[5] The court may permit plaintiff to plead over in the same way as if the case had been brought on before it on the argument of the demurrer. National Park Bank v. Billings, 144 App. Div. 536, 129 N. Y. Supp. 846.

The motion for judgment must therefore be granted, with $10 costs, but with leave to plaintiff to serve an amended complaint within 10 days after service of the order to be entered herein, entry of judgment in the meantime to be suspended.