Daub Storage Warehouse & Van Co. v. Fitzhenry

Giegerich, J. Hpon the return day of the summons in this case the parties appeared and the plaintiff complained orally as follows: “Work, Labor and Services.” The de [221] fendant thereupon interposed a written demurrer to the complaint. The demurrer was sustained, with leave to the plaintiff to plead over. The plaintiff then pleaded as follows : “ Work, labor and services rendered at defendant’s request, for an agreed price of $250.” This complaint appears to have been reduced to writing and is attached to the summons in the return. To this amended complaint the defendant again demurred, upon the ground that it did not state facts sufficient to constitute a cause of ■action. This demurrer was overruled and from the interlocutory judgment overruling such demurrer this appeal is taken. It is claimed by the respondent that the complaint in this case supplies the defects pointed out in complaint in. the case of Samuelson v. Mayer, 139 App. Div. 6, and that, therefore, it is sufficient. The court in the 'Samuelson case did not attempt to point out all the defects in the complaint in that case, and the material point decided therein was that, if -a defendant desired to demur to an oral complaint offered in a Municipal 'Court, he must do so promptly; and the court then said: “ If, upon the return day, upon the oral statement of plaintiff’s cause of action, defendant deems the same insufficient he should raise the question at once by demurrer, before pleading to the plaintiff’s complaint; the complaint should then be taken down at length by the stenographer and form part of the record of the case.” This court held in Reed v. Landau, 115 N. Y. Supp. 1068, that the defendant had “ a right to know in a definite and certain manner just what claim he is required to meet ” and that, when plaintiff’s attention is called to the defects in the complaint, “ it is a very easy matter to orally state his complaint which may.be taken down by the stenographer.” It has frequently been held that a complaint in a Municipal Court is to be tested, if its sufficiency be called in question, by the same rules as are applied to complaints’ in the 'Supreme Court.” State Board of Pharmacy v. Davey, 56 Misc. Rep. 568, and cases there cited. Section 149 of the Municipal Court Act declares that “ the complaint must-state in a plain and direct manner the facts constituting the cause of action.” The defendant herein followed the prac [222] tice laid down in the Samuelson case, supra, and promptly demurred to the complaint. Tested by the rules laid down as above stated, it is clear that the complaint is defective. Bo fact's are therein stated from which it can be said that' the defendant is liable to the plaintiff upon any cause of action. Possibly an inference might be drawn that work, labor and services had been rendered at defendant’s request for which he had agreed to pay the sum of $250, but by whom such services were performed, or when or where, or whether performed for the benefit of the defendant or for the benefit of some third person is not alleged. No contractual relation between the plaintiff and defendant is set forth; and the complaint, if it can be termed such, is merely the conclusions of the pleader' and raises no issue which the defendant is required to controvert. In a court where none but attorneys at law are allowed to practice, there is no hardship in requiring parties to make their pleadings full and complete so that the issues may be clearly defined. The demurrer- should have been sustained and the plaintiff allowed to again amend. Judgment overruling demurrer reversed, with costs, and demurrer sustained; and plaintiff allowed to amend his complaint within six days upon payment of costs in this court and in the court below. Gavegaw, J., concurs.