
    Charles A. Keene, Respondent, v. The Newark Watch Case Material Company, Appellant.
    
      Liability upon a bond to secure against loss one delivering gold to a manufacturer — right to sue thereon—a fact cannot be fixed by concession on the argument of a demurrer—an action presumed not to have been commenced before the date of the summonsi
    
    Charles A. Keene entered into a contract with the Camm Watch Case Company, • by which Keene agreed to deliver gold to the watch case company to be manufactured into watch cases, and the watch case company agreed to account to Keene at all reasonable times for the gold thus furnished, and to make good any deficiency. The contract was, by its terms, to continue from May 8, 1901,. to January 1, 1902. A bond was 'given to Keene by the Newark Watch Case Material Company, by which that company agreed to be answerable to him in damages at the termination of said contract “ for any loss of gold in an amount-in excess of one-half of one per centum of all the gold furnished ”■ thereunder.
    
      Meld, that in the event of the contract being terminated September 1, 1901, because: of the failure of the Camm Watch Case Company to make good a . shortage, of gold discovered on- an -accounting had on that day, Keene could, after January 1, 1902 (on which day the contract expired by its terms), maintain an action against the Newark Watch Case Material Company upon its • bond, provided that the failure to make good the shortage continued down to ., that time. -
    
      
      ■Quare, whether such an action could he maintained against the Newark Watch Case Material Company prior to January 1, 1902.
    When the date on which an action was commenced is important upon the determination of a demurrer to the complaint therein, such date cannot be fixed by a concession made upon the argument of the demurrer.
    In such a case the court may take judicial notice that the action was not commenced prior to the date of the summons issued in the action.
    Appeal by the defendant, The Fewark Watch Case Material Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Few York on the 27th day of October, 1902, upon the decision of the court rendered after a trial at the Few York Special Term overruling the defendant’s demurrer to the plaintiff’s amended complaint.
    
      Isaac L. Miller, for the appellant.
    
      A. Judson Hyatt, for the respondent.
   Laughlin, J.:

The demurrer is upon the ground that the complaint fails to state facts sufficient to constitute a cause of action. The plaintiff had a contract with the Camm Watch Case Company by which he was to deliver gold to it for manufacture into watch cases, and it agreed to account to him at all reasonable times for the gold thus furnished and to satisfy any obligation that might arise during the existence of the agreement or at its termination, on account of any loss in gold in handling and using the same in the execution of the contract. The contract, by its express terms, was to continue from the 8th day of May, 1901, until the 1st day of January, 1902. The action is upon a bond by which the defendant agreed to be answerable to him in damages at the terminatyion of said contract for any loss of gold in an amount in excess of one-half of one per centum of all the gold furnished ” thereunder. The plaintiff alleged that he delivered to the Camm Watch Cáse Company, pursuant to said contract, gold of the value of $49,000; that on the 1st day of September, 1901, an accounting was had as authorized by the contract, which disclosed a shortage of the gold so furnished of the value of $5,600.15 ; that he demanded that the Camm Watch Case Company make good the deficiency or pay the cash equivalent, and it has done neither; that the defendant has been apprised of the loss and requested to make the same good, but has failed to do so,' and the loss has not yet been made good. Judgment is demanded for the amount for 'which defendant is liable under the' bond.

If, as contended by the appellant, it be the legal effect of the allegation of the complaint that the contract, which was to continue until the 1st day of January, 1902, was terminated on the 1st day of September, 1901, it by no means follows that the defendant is not liable. If that were the effect of the allegation, the inference would be that the contract was' so terminated on account of the failure of the Camm Watch Case Company to make good the deficiency of gold found on the accounting at that time. It being sufficiently alleged that the deficiency continued down to the commencement of the action, the defendant unquestionably would be liable,' provided the action were not commenced before the 1st day of January, 1902, at which time the contract was, in any event, to expire. It is Unnecessary to decide whether an earlier termination óf the contract would render the defendant liable before the 1st day of January, 1902.-

The learned justice at Special Term, in sustaining the sufficiency of the complaint, wrote an opinion (Reported in 39 Miscellaneous Reports, 6) fully and ably considering every point urged in support of the demurrer. We would affirm on that opinion, were it not for the fact that it fixes the date of the commencement of the action, which became important on the determination of the demurrer, by a concession made upon the argument of the demurrer. The sufficiency of a pleading to which a demurrer is interposed should not be determined on a concession which forms no part of the record, and is not incorporated in the pleading by an' appropriate amendment. By the express provisions of section 418 of the .Code of Civil Procedure it is declared that “ the summons is deemed the mandate of the court.” The summons is dated March 28, 1902. We think the trial court could have taken judicial notice that the action was not commenced before the date of the summons and that would have led to the same result.

It follows, ■ therefore, that the interlocutory judgment should be affirmed, with costs, but with leave to the defendant to withdraw its demurrer and plead over on paying the costs of the demurrer and of the appeal.

Van Brunt, P. J., Ingraham, McLaughlin and Hatch, Jj., concurred.

Judgment affirmed, with costs, with leave to the defendant to withdraw demurrer and answer over on payment of costs in this court and in the court below.  