Opinion
December, 1906.
Henry Bogert Clark, for appellant.
William Klein, for respondent.
This is an appeal by the plaintiff from an interlocutory judgment of the City Court, sustaining a demurrer to the complaint upon the ground that it does not state facts sufficient to constitute a cause of action. The learned justice in sustaining the demurrer stated that the complaint failed to allege that the goods were manufactured at the request of the defendant and that he promised to pay therefor. The action was brought to recover the sum of $1,717 for the manufacture of certain gowns and for alterations made thereon. Among other allegations, the complaint sets forth that the plaintiff manufactured for the defendant Lee Shubert and for Sam S. Shubert certain gowns at the agreed price and reasonable value of $1,635 to be used in the musical comedy or opera known as Lady Teazle; that the defendant Lee Shubert and Sam S. Shubert were the owners and proprietors of the production of this musical comedy; that these gowns were duly delivered to the defendant and said Sam S. Shubert; that thereafter the plaintiff made alterations upon the said gowns for said Lee Shubert and Sam S. Shubert at the agreed price and reasonable value of $82, and that the said musical comedy was produced by said Lee Shubert and Sam S. Shubert and that these gowns were used therein. We think these allegations are sufficient averments of a request by the Shuberts to manufacture the goods and of a promise to pay therefor.
The interlocutory judgment sustaining the demurrer to the complaint should be reversed, with costs, the defendant to have leave to answer within six days upon payment of said costs.
GILDERSLEEVE and FITZGERALD, JJ., concur.
Interlocutory judgment reversed, with costs, defendant to have leave to answer within six days upon payment of costs.