Johnson v. New York Breweries Co.

The complaint sets out a cause of action based on a contract under which plaintiff undertook a partial reconstruction of defendant’s brew'ery, and agreed that the shoring should be done by him. Plaintiff further alleges that during the course of his work, defendant “wrongfully, unlawfully, and improperly” filled the vats upon the upper floors of the building, causing the building to collapse, destroying plaintiff’s work, and preventing' him from completing the contract, for which he asks damages.

If the complaint had alleged that, by agreement, the vats were to be kept empty, or that they were filled beyond a usual and normal capacity, .it would have stated a good cause of action. The bare allegation that they were “wrongfully, unlawfully, and improperly” filled is not, on demurrer or otherwise, susceptible of this interpretation. Greeff v. Equitable Life Assurance Society, 160 N. Y. 19, 54 N. E. 712, 46 L. R. A. 288, 73 Am. St. Rep. 659. On the contrary, the contract, as alleged in the complaint, evidently contemplated the continued use of the building and appliances by the defendant during the period of reconstruction.- Under an agreement to do the shoring, the plaintiff .necessarily undertook to provide against all the ordinary contingencies likely to occur.

As, therefore, the complaint does not state a cause of action, the demurrer thereto, on that ground, should have been sustained.

Interlocutory judgment reversed, with costs, and demurrer sustained, with leave to plaintiff to serve an amended complaint within six days after service of entry of the judgment hereon, upon payment of costs to date. All concur.