223 A.D. 808 | N.Y. App. Div. | 1928
From an examination of the complaint here involved we are unable to determine the theory under which the pleader seeks to recover. The acts complained of are said to be fraudulent as to plaintiff but this is only a general allegation of unspecified wrongdoing, and at best is but a legal conclusion. The usual and necessary averments of fraud are entirely lacking. No contract express or implied is alleged as existing between the plaintiff and the defendant Duell, nor is the plaintiff shown to be the beneficiary of any contract or trust by virtue of which the defendant Duel! is obligated to make payment to the plaintiff. We can only surmise what the basis of plaintiff’s claim is, but surmise is not enough — facts must be alleged sufficient to set the claim forth with clearness. The order denying the motion for judgment on the pleadings dismissing the complaint must be reversed, with ten dollars costs, and the motion granted, with ten dollars costs. Plaintiff has leave to amend within twenty days upon payment of the costs to date. All concur. Present — Hubbs, P. J., Sears, Crouch, Taylor and Sawyer, JJ. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to plaintiffs to serve an amended complaint within twenty days upon payment of the costs of the motion and of this appeal.