Heaman v. E. N. Rowell Co.

233 A.D. 335, 252 N.Y.S. 799, 1931 N.Y. App. Div. LEXIS 11283

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 7, 1931
• Status: Published

Opinion

Per Curiam.

Defendant seeks upon this motion to dismiss plaintiff’s complaint, pursuant to rule 112 of the Rules of Civil Practice, upon the ground that it fails to state facts sufficient to constitute a cause of action. The motion is addressed to the entire complaint. If any cause of action is stated the motion must be denied, even if it is apparent that the plaintiff is not entitled to all the relief which he seeks.

The pleading is inartistically drawn. In the first count two causes of action are attempted to be set up, without being separately stated or numbered; one is for the unpaid portion of the salary of the plaintiff for the period for which he was actually employed by the defendant; the other is for damages arising out of the breach of an alleged contract of permanent employment. It is unnecessary upon this appeal to determine whether the complaint states a cause of action for damages for the breach of a contract for permanent employment, because clearly a cause of action is stated to the extent of $749.77, the unpaid portion of the amount of plaintiff’s salary while he was employed by the defendant. The pleading cannot, therefore, be dismissed.

For this reason, and without attempting to pass upon the sufficiency of the complaint in so far as it pertains to damages for the alleged breach of plaintiff’s contract of permanent employment, we think that the decision of the court below was right, and that the order appealed from should be affirmed.

All concur. Present — Sears, P. J., Crouch, Edgcomb, Thompson and Crosby, JJ.

Order affirmed, with ten dollars costs and disbursements.