Henry F. Taylor, Resp’t, v. Robert B. MacLea, App’lt.
(City Court of New York,
General Term,
Filed December 1, 1890.)
Pleading—Lease.
In an action for rent, it is proper to annex a copy of the léase and refer to it as a part of the complaint. It is not necessary that the contents of the lease should be set out in the complaint according to their legal effect.
The complaint alleges that on or about the 10th day of September, 1890, the plaintiff and defendant entered into a written contract for the hiring by the defendant from the plaintiff of the dwelling-house Ho. 65 West ninetieth street in the city of New York, a copy of which is hereto annexed and forms part of this complaint. That in pursuance thereof the defendant became indebted to the plaintiff, on the 1st day of October, 1890, in the sum of $120.83 for rent of said premises, payable on that day; that payment thereof was demanded and refused. The defendant demurred upon the ground that the complaint did not state facts constituting a cause of action, the argument being that the contents of the lease should have been set out in the complaint according to their legal effect. The plaintiff had judgment on the demurrer and the defendant appeals.
William B. Fllison, for app’lt; Townsend Wandell, for resp’t
Per Curiam.
Chief Justice Helson said in Bayley v. The Onondaga Co. Mut. Ins. Co., 6 Hill, 479: “ As a general rule, a written contract should be set out in pleading according to its legal effect; but where the true meaning is doubtful, it is most advisable to set out the contract in hux verba, and leave the court *62to construe it.” Citing 1 Chitty’s PL, 306, 7; 1 Barn. & Cress 358; 3 Barn. & Aid., 66, 69, 70.
Judge Duer, in Fairbanks v. Bloomfield, 2 Duer, 353, went further. He said: “ The safest course, under the Code, where the action is founded on an instrument in writing, is to annex a copy and refer to it as part of the complaint.”
This, we hold, is good practice. It was followed in the present instance. The contract annexed is clear and explicit, and by its terms the money sued for became due and payable as stated in the declaration. The demurrer interposed was clearly frivolous, and was properly overruled.
The defendant, instead of appealing from the interlocutory judgment, has appealed from the order only, and in consequence we will, instead of affirming the order, dismiss the appeal, with costs. 76 H. Y., 514; 83 id., 624 ; 88 id., 660.
McAdam, Ch. J., Ehrlich and Fitzsimons, JJ., concur.