Stone v. Roberts Numbering Machine Co.

1 A.D.2d 770, 148 N.Y.S.2d 124, 1956 N.Y. App. Div. LEXIS 6468

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 31, 1956
• Status: Published

Opinion

Defendant’s motion seeks a dismissal of the entire complaint consisting of seven causes of action. The first cause seeks to recover gn gmount representing the balance due upon the agreed weekly payment of $100. It is admitted in the answer that defendant terminated the contract on August 10, 1954, effective January 15, 1954. While the contract may or may not have been one terminable at will, we find no provision therein authorizing an antedated termination. An issue of fact is presented as to plaintiff’s right to recover the weekly payments. If any cause of action in a complaint is sufficient, a motion for judgment on the pleadings under rule 112 must be denied (Heaman v. Rowell Co., 233 App. Div. 335). We pass upon no other question. Order unanimously affirmed, with $20 costs and disbursements to the respondents. Concur — Breitel, J. P., Bastow, Botein, Babin and Bergan, JJ.