Cash v. American Specialty Tailoring Co.

157 A.D. 729, 142 N.Y.S. 767, 1913 N.Y. App. Div. LEXIS 6639

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 10, 1913
• Status: Published

Opinion

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.