Randolph v. Murray — 56 N.Y. St. Rep. 224

Majority

p. 224

Theodore Randolph, Resp’t, v. Robert B. Murray, App’lt.

(Supreme Court, General Term, Second Department,

Filed December 1, 1893.)

Headnote

Pleadings—Demurrer.

A complaint which sets out a contract, alleges that the plaintiff did services under it which, by its terms, were not necessarily for an entire term of one year, that a certain sum was due upon it, and that all the conditions to be performed by him, to entitle him to such money, had been performed, "is not demurrable.

Appeal from a judgment sustaining a demurrer.

William E. Qowdey, for app’lt; Bichard S. Harvey, for resp’t

The complaint sets out two causes of action. One is upon a promissory note made by the defendant. There is no answer to this cause of action. The second cause of action is for work done under a contract, which is set forth by the complaint. By this contract the plaintiff agreed, for the space of one year from. May 23, 1892, to do certain printing in two newspapers in Rockland county. The defendant agreed to pay certain specified rates for setting up and printing the publication. The agreement is silent as to the time of the payment. The complaint avers that there was due the plaintiff under the contract on the 27th of October, 1892, the sum of $55.33, for services rendered and material supplied, and that such sum was demanded by the plaintiff from the defendant, and was not paid. The defendant demurs to this second cause of action for a failure to set up facts sufficient to constitute a cause of action. Under the rule that a demurrer admits the facts stated, the pleading is good. The contract, by its terms, permits either party to terminate it on a notice of sixty days. An admission, by the defendant, that a contract there was due to the plaintiff for work done under it, would support a judgment for the sum admitted to be due. The agreement mav have been one for weekly payments, in the view of the" parties, and it may have been abrogated. The admission of a sum

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due would be sufficient, in the absence of contradiction, to establish a right to judgment upon it. The averment of a specified sum due on the account, is aided by the allegation contained in the complaint, that the plaintiff has performed all the conditions of the contract, on his part.

The whole cause of action is equivalent to this: The plaintiff sets out a contract; alleged that he did work under it; by the terms of the contract, the services were not necessarily for an entire term of one year; that $55.38 was due upon it, and that all the conditions to be performed by the plaintiff, to be entitled to that money, had been performed.

The defendant says that these allegations are all true.

The judgment should be affirmed, with costs.