Tooker v. . Arnoux

Rapallo, J. At the opening of the trial the defend-ant moved to dismiss the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The motion was denied and exception taken. The reason assigned was that the defendant should have demurred. This position is in conflict with section 148 of the Code and with many decisions of this court. If the complaint was bad in substance the objection was available on the trial and the motion to dismiss should have been granted. (Schofield v. Whitelegge, 49 N. Y., 259; Coffin v. Reynolds, 37 id., 640; Emery v. Pease, 20 id., 62.) ■We think the complaint was clearly bad. The sale of the houses mentioned in the order and the receipt of money from such sale were conditions precedent to the defendant’s liability on his acceptance, and those facts should have been averred. In the absence of such averments no indebtedness *401 on his part to tho plaintiff appeared. (Munger v. Shannon, 61 N. Y., 251, 260.) • The denial in the answer of the receipt of any such moneys did not supplement the complaint in this respect. In Bate v. Graham (11 N. Y., 237), the answer contained an affirmative allegation of' the fact which the complaint should have averred, but in Schofield v. Whitelegge, as in the present case the answer contained a denial of the essential fact, and it was held that such denial did not cure tho defect in the complaint. The complaint in tho present case cannot be sustained by virtue of section 162 of the Code, which provided that in an action upon an instrument for the payment of money only, it should be sufficient to set forth a copy of the instrument and allege the amount due thereon. It was decided by this court in Conkling v. Gandall (1 Keyes, 231), that section 162 was not applicable where the liability of the defendant was conditional, and depended upon facts outside of the instrument ; that in such a case the facts must be averred. The objection to the complaint was not waived upon the trial. The defendant not only took the objection of the insufficiency of the complaint before any evidence was taken, but when the plaintiff offered evidence of the fact that the houses had been sold, he objected to such evidence on the ground that the fact had not been alleged in pleading. Wo see no ground upon which this case can be distinguished from the numerous cases in which it has been decided that a party may upon the trial lawfully demand a dismissal of tho complaint on the ground that it does not state facts sufficient to constitute a cause of action. The court below at General Term conceded that if the trial judge had granted the motion to dismiss it would have been bound to sustain his action. The necessary consequence of this concession is that in denying the motion the trial judge erred. It was not a question of discretion, but of legal right, whether the complaint should be dismissed, and if it would not have been error to grant the motion, it *402 was error to deny it. It is true that au amendment of the complaint might have been allowed in the court below, but no amendment was made or asked for, and the objection to the complaint having been taken in due season and overruled, the correctness of the ruling must be tested by the complaint as it stood, and not as it might have been changed by amendment. The judgment must be reversed and a new trial ordered, costs to abide the event. All concur. Judgment reversed.