Thomas W. Radford, Appellant, v. George B. Radford, Emma Rose and Adelaide W. Weller, Respondents

Thomas W. Radford, Appellant, v. George B. Radford, Emma Rose and Adelaide W. Weller, Respondents. ■Complaint by an heir at law to recover part of therpwceeds of a decedent’s, real estate — when it fails to allege a cause of action. \ 'The complaint, in an action alleged that a devise contained.in the will [of a testatrix was declared void by a court of competent jurisdiction; that, notwithstanding the will, the-real estate of the testatrix descended to her heirs at law, of whom the plaintiff was one; that thereafter certain of the' premises of which the testatrix died seized were, sold under an order of the Supreme Court at public auction, and were bid off by one Lewis Radford, who assigned his bid to one Emma Rose, who in turn assigned it to George R. Weller by whom the property was conveyed' to the defendants for the consideration of one. dollar, and that the plaintiff received no part of the one-ninth share j)f the proceeds of the sale, to which he claimed to be entitled. The complaint demanded judgment against the defendants for the amount of such one-ninth interest. Held, that as the complaint contained no allegations, showing- the relations of the defendants to the testatrix, or any fraud or deceit in the acquisition of the premises by them, or any failure of the purchaser at the sal6 to pay the purchase money, a demurrer interposed upon the ground that the complaint did not state facts sufficient to constitute a cause of action, should be sustained. . Appeal by the plaintiff, Thomas W. Radford, from a final judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 10th day of September, 1898, upon the decision of the court rendered after a trial at the Westchester Special Term sustaining the defendants’ demurrer to the complaint. John C. Donohue, for the appellant. John W. Alexander, for the respondents. [MAJORITY — Goodrich, P. J.:] Goodrich, P. J.: The complaint alleges that, in 1893, Adelia A. Radford died in Yonkers, seized of certain premises in the city of RewYork, of which a description is given ; that she left a will which was admitted to probate in 1894; that a devise and bequest contained in a paragraph therein was declared void by a court of competent jurisdiction (when is not alleged); that all the real and personal estate of the testatrix descended to her heirs at law, notwithstanding the will; that the plaintiff was an heir at law of the testatrix and entitled to an equal right and interest in and to such premises with his co-heirs at law (who such other heirs are is not alleged); that thereafter such premises were, by order of "'the Supreme Court (in what action does not appear), duly ordered to be sold at public auction and the money distributed according to law; that they were sold for $7,575 to one lewis Radford, who assigned his bid to Emma Rose, who assigned to George R. Weller (it is not alleged by what instrument Weller got title, but it is alleged that he conveyed the property to the ■defendants for the consideration of one dollar), and that the plaintiff received no part of his share of the moneys arising under said-sale, although entitled to share in the same to the extent of one-ninth, viz., $841.66, less the expenses of sale. The plaintiff demands / judgment against the defendants for that sum. , It, is not singular, on a familiar principle, that to 'such a complaint is signed the name of the plaintiff as “ plaintiff and attorney in person.” The present attorney was not substituted until ¡after the-entry of final judgment. Roe is it singular that a. demurrjer should, have been interposed to such a complaint- on the ground that it did not state facts sufficient to constitute a cause of action, nor that the-court sustained the demurrer. A final judgment dismissing ■ the, complaint was entered, from which alone this appeal is tallen. It is undoubtedly true that a complaint is not demurrable because-the facts are informally and imperfectly alleged, or because it- lacks-definiteness or precision (Marie v. Garrison, 83 N. Y. 14); yet it is-equally true that a plaintiff in his complaint must present a olearan d unequivocal statement of a cause of action, and that the onus-of having it made.so by motion cannot be cast upon the defendant.. (Clark v. Dillon, 97 N. Y. 370.) The complaint contains no allegations showing the relations of the-defendants to the testatrix, or any fraud of deceit in the acquisition of the premises by them, or any failure of the purchaser at the sale-to pay the purchase money. Indeed, it is difficult to know what-was in the pleaders mind as constituting. the basis of his action. The pleading is extremely inconsequent .and inartificial, apd states-no. cause of action whatever against the defendants. j The notice of appeal does not state that the appellant intends to-bring up for review the interlocutory judgment in accordance with section 1301 of the Code of Civil Procedure, and the final judgment-must be: affirmed,- with costs. j All concurred. Final judgment affirmed, with costs.