F. W. Carlin Construction Co. v. New York & Brooklyn Brewing Co.

149 A.D. 919, 134 N.Y.S. 493

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 15, 1912
• Status: Published

Opinion

Jenks, P. J.:

The opinion of Putnam, J., at Special Term is entirely satisfactory and renders superfluous any further discussion of the subject-matter thereof. We need but notice the point pressed here, that the pleading demurred to may be sustained on the theory of breach of contract. The essential features of that pleading are stated in the opinion of Putnam, J. The matter pleaded is so far without the limits of the contract that there cannot be question for fair debate and doubt upon that subject, and hence the theory of breach of contract cannot be sustained. (See Borough Const. Co. v. City of New York, 200 N. Y. 157; Molloy v. Village of Briarcliff Manor, 145 App. Div. 491.) The interlocutory judgment should be affirmed, with costs, with leave to the plaintiff to plead over upon payment of costs. Hhsehberg, Burr, Woodward and Rich, JJ., concurred. Interlocutory judgment affirmed, with costs, with leave to plaintiff to plead over upon payment of costs.