
    Charles I. Fleck et al., Appellants, v. Robert Friedman, Respondent.
    (Supreme Court, Appellate Term,
    January, 1906.)
    Pleading — Demurrer — Grounds of demurrer to complaint — Vagueness and indefiniteness not sufficient ground.
    Where the complaint in an action to recover for services completely performed, though stating the facts according to their legal effect, is vague and indefinite, the defendant should either demand a hill of particulars or move to make the complaint more-definite and certain; a demurrer will not lie.
    In such case, plaintiff may not be required to insert in his complaint the details of time of performance, in anticipation of a possible defense that performance was made out of season.
    Appeal by the plaintiffs from a judgment of the City Court of the city of Few York rendered in favpr of the defendant.
    Abraham Oberstein, for appellants.
    Shapiro & Shapiro, for respondent.
   Blanchard J.

“ II. That, at the special instance and request of the defendant, the plaintiffs performed certain services, and it was agreed that, upon the performance of such services by the plaintiffs for the defendant, the defendant would pay the plaintiffs the sum of $1,000.

“ III. That such services were performed by the plaintiffs in behalf of the defendant.

IV. That no part of said sum of $1,000 agreed to be paid by the defendant to the plaintiffs upon the performance of such services has been paid by the defendant to the plaintiffs, and the same is now due and owing from the ■defendant to the plaintiffs.”

The complaint states the facts according to their legal effect and is vague and indefinite.

This difficulty, however, cannot he reached by a demurrer, but only by a demand for a bill of particulars, or a motion to make the complaint more definite and certain. N. Y. Pub. Co. v. Steamship Pub. Co., 148 N. Y. 39, 41.

The failure to state the time within which performance was made, upon which the trial court rested its dismissal of the complaint, was not a defect in stating the cause of action. Pope v. Terre Haute Car & Mfg. Co., 107 N. Y. 61, upon which the trial court relied, is inapplicable to the present •case. That action was brought for breach of an executory -contract, the performance of which, on the part of the plaintiff, had been prevented by the conduct of the defendant. In •stating his cause of action, therefore, the plaintiff, in that case, was bound to excuse his own nonperformance and to state, in sufficient detail, the time of his own offer of performance, in order to show his readiness to perform according to the terms of the contract.

In the present case, action is brought to recover for services completely performed, and it is improper to require the plaintiffs to insert in their complaint the details of time of performance, in anticipation of a possible defense that performance was made out of season.

Scott and Dowling, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellants to abide event»  