W. F. Powers Co. v. R. E. Gould Co. , 39 N.Y. Civ. Proc. R. 345 ( 1907 )

SEABURY, J.

This is an appeal from a judgment in favor of the plaintiff, entered upon the failure of the defendant to answer after the court had overruled a demurrer to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action. The complaint alleged:

“(3) That heretofore, and on or about June 30, 1906, the plaintiff performed certain work, labor, and services in and about the furnishing twenty-seven (27) copies of a certain booklet, entitled ‘The Will of a Woman,’ of the value of and for which the defendant promised and agreed to pay the sum of $25, 30 days after delivery.

“(4) That no part of said sum has been paid, and defendant has refused and still refuses to pay the same, although payment thereof has been duly demanded, and the whole of said sum now remains unpaid and due and owing to the plaintiff.”

It will be observed from the allegations of the complaint that the defendant’s obligation to pay did not arise until “30 days after delivery.” The complaint is therefore fatally defective in failing to allege delivery to the defendant. Under the contract alleged in the complaint the labor and services performed by the plaintiff would not entitle it to recover until 30 days after the books had been delivered to the defendant. •

The judgment and order is reversed, with costs, and the demurrer sustained, with costs, with leave to plaintiff to plead over within six days upon-payment of said costs. ■ All concur.