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Macksoud v. Dildarian

93 N.Y.S. 382 Court N.Y. App. Term Decision date 1905-04-24 English

Delivered by *383 GREENBAUM, J.

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p. 382
MACKSOUD et al. v. DILDARIAN.
(Supreme Court, Appellate Term.
April 24, 1905.)

Headnote

1. Sales—Actions fob Price—Pleading.
A complaint for goods sold, which fails to allege either the value or the agreed price, if any, is defective.
[Ed. Note.—For cases in point, see vol. 43, Cent. Dig. Sales, § 995.]
2. Same—Reference to Bill of Particulars.
A reference, in a complaint for goods sold and delivered, to a bill of particulars attached to the complaint, in which, it is alleged, are “detailed certain payments,” presumably made upon the alleged sale, does not amount to an allegation of value of the goods.
Appeal from Municipal Court, Borough of Manhattan, First District.
Action by Elias j. Macksoud and others against Nishan L. Dildarían. From an interlocutory judgment overruling a demurrer to the complaint, and from a final judgment for plaintiffs, defendant appeals. Reversed.
Argued before SCOTT, P. J., and LEVENTRITT and GREEN-BAUM, JJ.
George S. Rebebían, for appellant.
Charles Le Barbier, for respondents.

The complaint, which is for goods sold and delivered, contains no allegation either of the value or the agreed price, if any, at which they were sold. The reference made to a bill of particulars attached to the complaint, in which, it is alleged, are “detailed certain payments,” presumably made upon the alleged sale and delivery, does not amount to any allegation of value. Plaintiff apparently appreciated the obvious infirmity of the complaint, in moving for an amendment thereof when he was made aware of the grounds of the demurrer. For some unexplained reason, however, plaintiff took his chances upon the demurrer, and did not press his application for an amendment. The complaint is so clearly defective in omitting the allegations indicated that the demurrer to its insufficiency should have been sustained.

The interlocutory and.final judgments are reversed, with costs, with leave to plaintiff to amend his complaint within six days upon payment of costs. All concur.