
    Elwood S. Hand, Appellant, v. William A. Shaw and James K. Shaw, Respondents.
    1. Pleading — Instrument Facts . outside the instrument must be "pleaded..
    Where a liability is conditional and dependent upon facts outside of ■ the instrument, those facts must be alleged.
    2. Motion to dismiss the complaint.
    Where a complaint does not' state facts sufficient to constitute a cause of action, a motion to dismiss the complaint may be made at any time before the trial is concluded.
    
      Appeal from a judgment in favor of defendants.
    Charles De Hart Brower, for appellant.
    David J. Newland, for respondents.
   McCarthy, J.

We think that the objection raised by the Appellate Term in Hand v. Shaw, 18 Misc. Rep. 1, still exists, and is sufficient to affirm this judgment.

But if that has been cured it is clear that this complaint is defective in that it does not state facts sufficient to constitute a cause of action, and thus the plaintiff cannot recover.

The complaint was clearly bad. There must be first a sale of the merchandise by the defendants for a proposed new hotel, which must be made known at the time of the selection out of which the deduction which the plaintiff desires could be made, and the fact that there was a sale for such a purpose, and that the plaintiff gave notice to the defendants at the time he gave the order that the merchandise was for a proposed new hotel, and the particular hotel for which it was intended should have been averred.

The denial in the answer does not cure the complaint in these particulars.

¡Nor can it be sustained, by section 534 of the Oode, for where the liability is conditional, as in this case, and depends on facts outside of the instruments, such facts must also be averred. Tooker v. Arnoux, 76 N. Y. 401; Broome v. Taylor, id. 564.

And, where the complaint does not state facts sufficient to constitute á cause of action, the objection is available on the trial at any time upon motion to dismiss the complaint, and when made is not a matter of discretion, but one of right.

The motion to dismiss the complaint was properly made both at the beginning and at the end of the trial and should have been granted at either time. Coffin v. Reynolds, 37 N. Y. 639.

In regard to the exception by the plaintiff to the ruling of the court, it mattered not what the plaintiff determined alone, and in the absence of the defendants, as to what to do, but it was necessary for the plaintiff to show the exact contract between him and the defendants, as that was the issue here, and as to what occurred, this not being a regular and ordinary sale, and he being an employee only, and without' authority of the defendants, and without any notice to the defendants in advance, that this purchase was being made in connection with the contract herein, anything he might say'as to the prices and grade .of merchandise under this peculiar contract would not bind the defendants. .

After an examination of all the facts, we- think the judgment should be affirmed, with costs.

Van Wyck, Ch. J., concurs.

Judgment affirméd, with costs.  