Johnson v. New York Breweries Co.

Appellate Terms of the Supreme Court of New York

Johnson v. New York Breweries Co.

125 N.Y.S. 447

CourtAppellate Terms of the Supreme Court of New York

DecidedNovember 11, 1910

StatusPublished

This text of 125 N.Y.S. 447 (Johnson v. New York Breweries Co.) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Johnson v. New York Breweries Co., 125 N.Y.S. 447 (N.Y. Ct. App. 1910).

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Opinion

BIJUR, J.

The complaint sets out a cause of action based on a contract under which plaintiff undertook a partial reconstruction of defendant’s brew'ery, and agreed that the shoring should be done by him. Plaintiff further alleges that during the course of his work, defendant “wrongfully, unlawfully, and improperly” filled the vats upon the upper floors of the building, causing the building to collapse, destroying plaintiff’s work, and preventing' him from completing the contract, for which he asks damages.

If the complaint had alleged that, by agreement, the vats were to be kept empty, or that they were filled beyond a usual and normal capacity, .it would have stated a good cause of action. The bare allegation that they were “wrongfully, unlawfully, and improperly” filled is not, on demurrer or otherwise, susceptible of this interpretation. Greeff v. Equitable Life Assurance Society, 160 N. Y. 19, 54 N. E. 712, 46 L. R. A. 288, 73 Am. St. Rep. 659. On the contrary, the contract, as alleged in the complaint, evidently contemplated the continued use of the building and appliances by the defendant during the period of reconstruction.- Under an agreement to do the shoring, the plaintiff .necessarily undertook to provide against all the ordinary contingencies likely to occur.

As, therefore, the complaint does not state a cause of action, the demurrer thereto, on that ground, should have been sustained.

Interlocutory judgment reversed, with costs, and demurrer sustained, with leave to plaintiff to serve an amended complaint within six days after service of entry of the judgment hereon, upon payment of costs to date. All concur.

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BIJUR, J.

The complaint sets out a cause of action based on a contract under which plaintiff undertook a partial reconstruction of defendant’s brew'ery, and agreed that the shoring should be done by him. Plaintiff further alleges that during the course of his work, defendant “wrongfully, unlawfully, and improperly” filled the vats upon the upper floors of the building, causing the building to collapse, destroying plaintiff’s work, and preventing' him from completing the contract, for which he asks damages.

If the complaint had alleged that, by agreement, the vats were to be kept empty, or that they were filled beyond a usual and normal capacity, .it would have stated a good cause of action. The bare allegation that they were “wrongfully, unlawfully, and improperly” filled is not, on demurrer or otherwise, susceptible of this interpretation. Greeff v. Equitable Life Assurance Society, 160 N. Y. 19, 54 N. E. 712, 46 L. R. A. 288, 73 Am. St. Rep. 659. On the contrary, the contract, as alleged in the complaint, evidently contemplated the continued use of the building and appliances by the defendant during the period of reconstruction.- Under an agreement to do the shoring, the plaintiff .necessarily undertook to provide against all the ordinary contingencies likely to occur.

As, therefore, the complaint does not state a cause of action, the demurrer thereto, on that ground, should have been sustained.

Interlocutory judgment reversed, with costs, and demurrer sustained, with leave to plaintiff to serve an amended complaint within six days after service of entry of the judgment hereon, upon payment of costs to date. All concur.

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125 N.Y.S. 447, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-new-york-breweries-co-nyappterm-1910.

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