
    Samuel Babcock, Appellant, v. Spencer Anson, as Administrator, etc., of Susan Anson, Deceased, Respondent.
    Fourth Department,
    November 12, 1907.
    Pleading — complaint in action for work, labor and services — allegation showing non-payment — amendment at trial.
    The complaint in an action to recover the reasonable value of work, labor and services rendered at the defendant’s request need not allege that the defendant expressly agreed to pay for the services or to pay a specific sum.
    In such action the complaint must allege non-payment of the debt, but a complaint which as a second cause of action sets out that during the period embraced in the first cause of action in which there was a failure to allege nonpayment, the sums stated as due in that action became payable and that no payment has been made, with certain exceptions, leaving abalancedue,etc., although not good pleading should by fair interpretation be construed as alleging nonpayment in both causes of action.
    It is not good pleading to allege in a second cause of action “the entire contents of folio one ” of the complaint when it is uncertain how much is included by such reference, but the objection to such defect should be taken by motion and not by demurrer or motion for a nonsuit.
    Although an allegation that the defendant “became indebted” to the plaintiff “ for money had and received ” is a mere conclusion, it does not warrant the dismissal of the complaint if by other allegations it states a cause of action. An allegation that the defendant’s intestate “ became indebted unto this plaintiff for money paid out and expended for the use and benefit ” of the intestate “at her instance and request in the purchase of lumber, etc., in the sum of §300 ” sufficiently shows the origin of the indebtedness and the liability to repay.
    When a complaint and bill of particulars, though inartificial, have not misled the defendant as to the cause of action, the plaintiff should be allowed to amend at triiil on terms.
    Appeal by the plaintiff, Samuel Babcock, from a judgment of the Supreme Court in favor of the defendant, entered in' the office of the clerk of the county of Oswego on the 8th day of June, 1907, upon the dismissal of the complaint by direction of the court after a trial at the Oswego Trial Term, and also from an order entered in said clerk’s office on the 8th day of June, 1907, directing the dismissal of the complaint.
    
      J. W. Shea, for the appellant.
    
      Udelle Bartlett and A. S. Barker, for the respondent.
   Spring, J.:

The complaint alleges the death of Susan Anson and the issue of letters of administration to the defendant. Further, that at a time stated the plaintiff “ went into the employ of the said Susan Anson at her request and continued in her employ and performed work, labor and services for her and at her request ” until a time alleged, and that the services were those of a laborer and farm hand; ” and that said services were- reasonably worth the sum of Two thousand five hundred dollars.” These averments comprise the first cause of action and it is plain they charge that the plaintiff was engaged in the service of the defendant for a definite period, and that the work performed pursuant to the employment was worth a certain sum. It is not necessary to' allege that the- employer ■ expressly agreed to pay for these services or to pay a precise sum i If she engaged the plaintiff in. her service, or if he performed work at her request, the implication is that she was to pay therefor. She may never have agreed in terms to pay him, although the expectation to do so may be certain. In any event in ordinary circumstances the failure of the master to agree expressly to compensate his servant does not debar 'the latter from recovering what he has fairly earned.

It is urged that the action is to recover damages . for breach of contract and that it is necessary to allege non-payment of the debt, as that constitutes the breach. The authorities sustain this contention. (Lent v. N. Y. & M. R. Co., 130 N. Y. 504; Bacon v. Chapman, 85 App. Div. 309; National Bank of Deposit v. Rogers, 166 N. Y. 380, 387.)

Let us examine the complaint further and see if there is no't a reasonable compliance with this ■ rule. There is a second cause of action set out in the pleading. Under that number, but in an independent paragraph, the pleader alleges that from May 5, 1885, to December 3, 1905, and each cause of action spans the same time, “ each and every one of the sums stated in the foregoing causes of action became due and payable before the commencement of this action and no payments have been made thereon, except,”' etc., The character of the alleged payment is then set forth, aggregating $366, and “ leaving a balance due plaintiff herein in said claim and account the sum of ” $3,434. The claim in the second cause of action is only $1,300, and it is obvious that the amount of the entire indebtedness claimed is ascertained by deducting the sum allowed in reduction of the entire demand.

Incorporating the allegation of non-payment in the 2d paragraph or count is not good pleading. It is a jumble which may create confusion, but the remedy for that defect is by motion. A fair interpretation of the whole pléading is that the allegation of non-payment applies to both demands, and no one can be misled by the faulty arrangement of the allegations.

The allegations taken together, although inartificially placed, state a cause of action and stand the test. (Schlieder v. Dexter, 114 App. Div. 417.)

In the second cause of action the plaintiff alleges “ the entire contents of folio one ” of the complaint. From the folioing contained in the record -it is uncertain how much was included in this reference, and this method of pleading is not to be sanctioned; but the remedy for its cure is not by demurrer or dismissal at the trial, but by motion. (Thompson v. Wittkop, 184 N. Y. 117.)

In the second cause of action it is alleged that the decedent “became indebted” to the plaintiff for $1,000 “for money had and received * * * from May 5th, 1885, to December 3rd,- 1905.” It may be within the authorities this allegation is a mere conclusion of law (Sampson v. Grand Rapids School Co., 55 App. Div. 163 ; Tate v. American Woolen Co., 114 id. 106), but unless no cause of action is stated in the complaint a dismissal for failure as to this one item will not be sustained.

For a second item embodied in this paragraph the allegation is that Susan Anson “ became indebted unto' this plaintiff for money paid out and expended for use and benefit of said Susan Anson and at her instance and request, and in the purchase of lumber, goods, wares and merchandise in the sum of three hundred dollars.” "W"e think the origin of this indebtedness is sufficiently alleged, and if the expenditure was made at the request of the intestate, liability to repay follows.

The complaint alleges, and the answer admits, that a verified statement of the claim was presented to the defendant and rejected by him. Tire claim is in the record. A bill of particulars also in the record was furnished to the defendant. The items which compose the plaintiff’s claim are there set out with the credits admitted in the complaint. The services claimed covér a period of twenty years, and would not, probably, be susceptible of elucidation by items.

While the pleading is not to be commended, we think it does state a cause of action, and in connection with the verified claim and bill of particulars was sufficiently explicit to inform the defendant of the claim against him.

When the motion to dismiss was about to be granted, the plaintiff’s counsel asked for leave to amend if there was any informality in the complaint, but leave was denied. It seems quite clear that the defendant was not misled by the defects now urged, and the court, if it was satisfied the complaint was defective, should have allowed an amendment, imposing such terms as it deemed equitable. (National Bank of Deposit v. Rogers, 166 N. Y. 380, 387.)

The judgment and order should be reversed and a new trial ordered, with costs to the appellant to abide event.

All concurred.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.  