Opinion
May 26, 1910.
Joseph P. Friedman, for the appellant.
Isaac Miller, for the respondents.
The defendant states in his notice of appeal from the judgment that he will bring up for review "a certain interlocutory judgment filed herein * * * styled * * * a `Decision.'" There is no provision in the Municipal Court for an interlocutory judgment on demurrer. Where a demurrer is interposed and disallowed, the court must grant leave to plead, or, if the court deems it well founded, it must permit the pleading to be amended, and if the party fail so to amend, the defective pleading must be disregarded. (Mun. Ct. Act, § 145.) The ruling of the court upon the demurrer may be considered on an appeal from the judgment. The difficulty in the way of the appellant in this case is that when his demurrer is disallowed he did not plead over, and, therefore, the court took an inquest, so that this appeal does not lie because it is from a default judgment. ( Goldman v. Brooklyn Heights R.R. Co., 129 App. Div. 657.) I think that the remedy of this appellant is found in section 253 of the Municipal Court Act, for an appeal lies from an order made or denied thereunder, save that no appeal lies in the first instance from an order opening a default and vacating a judgment entered thereon. (§ 257.)
I think that the complaint did not state facts sufficient to constitute a cause of action. The return shows that the pleadings were oral, and that the plaintiff complained of the defendant as follows: "Goods sold and delivered." While the Municipal Court Act permits an oral or a written complaint (§ 145), the requirement of section 149 is in terms applicable to either kind of pleading. That section requires that the complaint must state in a plain and direct manner the facts constituting the cause of action. A complaining of B thus, "Goods sold and delivered," manifestly does not state the facts constituting his cause of action. The mere fact that A has sold and delivered goods to B does not afford A a right of action against B. The cause of action arises when B has not performed on his part — when there is a breach of the contract by him. ( Tracy v. Tracy, 59 Hun, 6.) There must have been some wrong on the part of B — some refusal or neglect of his obligation in the premises to A. "A party must recover not only by his proof, but upon his allegations. The facts stated must constitute a cause of action and they must be in evidence. It is not enough that they stand upon proof, unless that proof is preceded by statement." ( Clark v. Post, 113 N.Y. 27.) "Every fact which the plaintiff must prove to enable him to maintain his suit, and which the defendant has a right to controvert in his answer, must be distinctly averred or stated." ( Allen v. Patterson, 7 N.Y. 478.) There can be no question that a demurrer may be pleaded to an oral complaint. For section 145 specifies demurrer as among the pleadings that may be written or oral. Section 158 permits in express terms a demurrer to the complaint, and subdivision 2 of section 145 requires a written demurrer when the complaint is written, thus in effect recognizing that a demurrer lies to an oral complaint.
The appeal is dismissed, with costs.
BURR, THOMAS and CARR, JJ., concurred; RICH, J., voted that the dismissal be without costs.
Appeal dismissed, with costs.