66 N.Y.S. 815 | N.Y. App. Div. | 1900
From the allegations of the complaint it may be inferred that there was some arrangement between Devereaux & Co. and the defendant under which the firm at some time was engaged in selling goods for the defendant on commission. It is not alleged what that arrangement was. A party seeking to recover on a contract must allege as well as prove what it was.
Assuming that it may be inferred that the firm was working for the defendant at its request, the amount of work done, and the agreed price, if there was one, or the value, should be alleged. . Proof of those facts would be essential to a recovery. They are not alleged. The allegation simply that the defendant is indebted to the firm or to the plaintiff in a certain amount is only the allegation of a conclusion of law. Nor does the characterization of the nature of the debt, that is, that it is for commissions on goods sold, help, the matter. It is not a statement of the facts from which the conclusion is to be drawn that the defendant is indebted in the claimed amount for commissions. It is not a statement, as required by the Code . (§ 481 subd. 2), “ of the facts constituting each cause of action.”
The demurrer is, I think, well taken. ■
All concurred, except Smith, J., dissenting:
Interlocutory judgment reversed and demurrer sustained, with costs, with usual leave to amend on payment of costs.
