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Middleton v. Ames

37 A.D. 510 Court N.Y. App. Div. English

Delivered by McLaughlin, J.:

Contents

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p. 510
William Middleton, Respondent, v. Wilbur T. Ames, Appellant.

Headnote

•Complaint—where the facts stated entitle the plaintiff to some relief, although not to that demanded, a demurrer will not lie.
The complaint in an action alleged that the plaintiff and a third party sold and delivered to the defendant certain personal property, including the good will of a business theretofore carried on by them, for a certain sum, which the defendant agreed to pay “ out of the proceeds of the business to be done through the property and good will hereby sold,” three-fifths thereof to the third party in wéekly payments of §150, and two-fifths thereof to the plaintiff in weekly payments of §100; that the defendant had sold and disposed of the personal property and abandoned the business, having paid the plaintiff only the sum of §150, and that the plaintiff had demanded an accounting which had been refused. The complaint demanded as relief that an accounting be had under the agreement and a judgment for the balance which might be found tobe due to the plaintiff, and such other and further relief as might be just.
Meld, that a demurrer interposed to such complaint on the ground that it did not state facts sufficient to constitute a cause of action could not be sustained as, although the plaintiff might not be entitled to an accounting, he was clearly entitled to some relief upon the facts stated.
p. 511
Appeal by the defendant, Wilbur T. Ames, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21st day of November, 1898, upon the decision of the court rendered after a trial at the New York Special Term overruling the defendant’s demurrer to the plaintiff’s complaint.
Willimn Henry Knox, for the appellant.
William H. Andrews, for the respondent.

The defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled, and from the interlocutory judgment entered the defendant appealed.

The complaint alleged that the parties and one Henry Onequi on the 3d of February, 1898, entered into a written contract, by the terms of which the plaintiff and Onequi sold and delivered to the defendant certain personal property, including the good will of a business theretofore carried on by them for the sum of $8,250, which sum the defendant agreed to pay “ out of the proceeds of the business to be done through the property and good will hereby sold, three-fifths thereof to be paid to said Onequi in weekly payments of one hundred and fifty dollars, and two-fifths thereof to jie paid to said Middleton in weekly payments of one hundred dollars.” The complaint further alleged that the defendant had sold and disposed of the personal property and abandoned the business ; that he had paid to the plaintiff the sum of $150 and no more ; and that plaintiff had demanded an accounting, which had been refused. The relief demanded was an accounting under the agreement and a judgment for the balance which might be found due the plaintiff, and such other and further relief as might be just.

Whatever may be said of the complaint it is clear that the facts stated show that the plaintiff is entitled to some relief, and, therefore, the ruling of the court at Special Term was right. The general rule is that if the facts stated show that the plaintiff is entitled to any relief, it matters not whether it be legal or equitable, the complaint is not demurrable on the ground that it does not state a

p. 512
cause of action. A party is not to be turned out- of court simply because he has made a mistake in demanding the relief to which he is entitled. (Wetmore v. Porter, 92 N. Y. 76 .) Here the plaintiff may not be entitled to an accounting, but that he is entitled, to some relief upon the facts stated cannot be seriously questioned. The defendant obtained possession of his property and the good will of the business referred to under a promise to pay for the same, which promise he has failed to keep. He has sold and disposed of the property and abandoned the business, and it does not require an extended discussion to show that he is under some legal liability to the plaintiff. The violation of a legal contract usually subjects some one to a liability.

It follows that the judgment appealed from is right and should be affirmed, with costs, with leave to the defendant to withdraw demurrer and to answer within twenty days, upon payment of costs in this court and in the court below.

Van Brunt, P. J., Barbett, Rbmsey and Ingraham, JJ., concurred.

Judgment affirmed, with costs, with leave to defendant to withdraw demurrer and to answer within twenty days, on payment of costs in this court and in the court below.

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