Jacob Cash, Respondent, v. American Specialty Tailoring Company, Appellant

Jacob Cash, Respondent, v. American Specialty Tailoring Company, Appellant. First Department, July 10, 1913. Pleading — complaint in action on contract — conclusion of law—order for examination of defendant before trial vacated where complaint insufficient. Where a complaint contains statements as to the making of a contract, the substance thereof, and that it is annexed to and made a part of the complaint, followed by an allegation that “ there is now due and owing this plaintiff under the aforesaid contract, the sum of $4,000, no part of which has been paid, although duly demanded,” and no facts are stated from which it can be determined whether the plaintiff claims for a breach of contract, services rendered or commissions earned, or that the plaintiff has performed or was ready and willing to perform on his part, the allegation quoted is a mere conclusion of law, rendering the complaint insufficient, and an order for the examination of one of the officers of defendant before trial, and directing the production of books and papers, should be vacated. Appeal by the defendant, American Specialty Tailoring Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of March, 1913, as resettled by an order entered in said clerk’s office on the 19th day of April, 1913, denying defendant’s motion to vacate an order for the examination of one of its officers before trial, and directing the production of books and papers. H. Lionel Kringel, for the appellant. Charles Soble, for the respondent. [MAJORITY — Per Curiam:] Per Curiam: This appeal is from an order denying a motion to vacate an order for the examination of one of the officers of the defendant before trial and directing the production of books and papers. The motion to vacate should have been granted for the reason that the complaint does not state facts sufficient to constitute a cause of action. All that it contains are statements as to the making of the contract, the substance thereof, and that it is annexed to and made a part of the complaint. Then follows an allegation that “ there is now due and owing this plaintiff under the aforesaid contract, the sum of Four thousand dollars ($4,000) no part of which has been paid, although duly demanded.” No facts are stated from which it can be determined, or even inferred, whether the plaintiff claims for a breach of the contract, services rendered, or commissions earned. There was no allegation to the effect that the plaintiff has performed or was ready and willing to perform on his part. The allegation above quoted, showing that there is due $4,000 is a mere conclusion of law, not based upon any facts set forth in the complaint. The order appealed from, therefore, is reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. Present—Ingraham, P. J., McLaughlin, Laughlin, Clarke and Scott, JJ. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.