Opinion
November Term, 1901.
Judgment reversed, with costs, and demurrer sustained, with costs, with leave to plaintiff to plead over on payment of costs in this court and in the court below.
This action was brought to obtain an accounting of the business of the Bradford Importing and Trading Company, one of the defendants, and for a judgment against all defendants for such sum as shall be found due on such accounting, and for such other or further relief as to the court shall seem just. The defendants demurred to the complaint upon the ground that it does not state facts sufficient to constitute a cause of action, which demurrer was overruled, and from the interlocutory judgment entered thereon this appeal is taken. We are of opinion that the judgment appealed from should be reversed and an interlocutory judgment directed sustaining the demurrer. The complaint is fatally lacking in averment of facts which show the plaintiff entitled to any relief. In substance and effect it only avers conclusions of fact and law. There are no averments of fact showing either partnership, agency, fiduciary relation or trust reposed in the defendants with respect to the money alleged to have been left with them; nor is there any averment showing a contract or agreement of any kind, or a breach thereof. Giving the plaintiff the benefit of every just and reasonable inference to be drawn from the whole statement of the complaint, no cause of action for an accounting is averred. ( Schantz v. Oakman, 163 N.Y. 148.) The complaint in the case cited was much more complete in its attempted averment of a cause of action than is the complaint in the case at bar, and yet it was held defective. It follows that the interlocutory judgment should be reversed, with costs, and judgment entered sustaining the demurrer, with costs, with leave to the plaintiff to plead over within twenty days, on payment of costs in this court and in the court below. Van Brunt, P.J., Patterson, Ingraham and Laughlin, JJ., concurred.