Frank Seaman, Inc. v. Stirn

137 A.D. 659, 122 N.Y.S. 406, 1910 N.Y. App. Div. LEXIS 754

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 8, 1910
• Status: Published

Opinion

Dowling, J.:

- In its present form the complaint herein appears to set forth three different and distinct causes of action : (1) One based upon a contract made on February 18,1908, between I. M. Simpson for and on behalf of the Textile Publishing Company and the defendants; thereafter assigned, .after part performance, to the plaintiff by the Textile Publishing Company at the request of the defendants and with their knowledge and approval, the plaintiff assuming certain indebtedness and performing the balance of that contract. (2) A further independent contract, made as part of the consideration for such assignment, whereby the defendants agreed to pay plaintiff in return for securing the advantages of its business facilities, a further sum of ten'per cent upon the price to be .paid under the contract of February 18, 1908, for certain booklets and other matter. (3) A separate and independent contract, made at some unknown date, whereby the plaintiff furnished and delivered to the defendants, upon their order, certain printed matter and stationery at the agreed, price of $868.09, and whereby .certain advertising was to be done.

It is nowhere alleged that the last two contracts were modifications of the original contract or formed any part thereof, and the complaint furnishes no means by which it' can be determined with certainty hów the amount sued for is arrived at or apportioned between these three contracts. The defendants are entitled to.know whether the plaintiff .is relying upon the original contract, subsequently modified by mutual agreement,, and if such is plaintiff’s contention it should state so unequivocally. If, on the other hand, the plaintiff is suing Upon three separate causes of action^ then the}' must be separately numbered and stated, and it must appear how much is sought to be recovered upon each of them.

The order appealed from must, therefore, be reversed,- with ten dollars costs and disbursements, and the application granted, to the extent.indicated, with ten dollars costs of motion.

Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and. motion granted to extent stated in opinion, with ten dollars costs. Settle order on notice.