
    Christopher Sparks, Respondent, v. Benjamin P. Ducas, Appellant.
    First Department,
    January 24, 1908.
    Pleading — husband and wife — necessaries — failure to allege value.
    A complaint framed in a two-fold aspect, to recover for necessaries furnished the defendant’s wife and child, and moneys advanced for their necessary expenses, and further alleging that the defendant authorized the furnishing of the necessaries and advancements, fails to state a cause of action in the absence of allegations as to the value of the necessaries furnished and the amount of money advanced.
    As money is presumed to be of its face value, only the amount advanced need be alleged; hut as to necessaries furnished the complaint must allege either the agreed price or the value of the goods.
    Such defect in the complaint is not cured by allegations that an itemized account was furnished the defendant'who made partial payments thereon, when the action is not upon an account stated.
    Appeal by the defendant, Benjamin P. Dueas, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 5th day of December, 1907, upon the decision of the court, rendered after a trial'at the. New York Special Term, .overruling the defendant’s demurrer to the complaint.,
    
      Jay C. Guggenheimer, for the appellant.
    
      Robert L. Cutting, for the respondent.
   Houghton, J.:

The complaint alleges that the plaintiffs assignors furnished to defendant’s wife and infant child certain necessary wearing apparel, and advanced to them moneys for certain necessary expenses.

The complaint is framed in a twofold aspect, the one being that the defendant failed to provide for his wife and child such necessary wearing apparel and moneys, and the other that defendant author-. ized the furnishing of such apparel and the advancement of such moneys to them. It fails to state, however, the value of the apparel or the amount of money advanced. These are fatal defects and the demurrer interposed by defendant on the ground that the complaint did not state facts sufficient to constitute a cause of action was improperly overruled.

In an action for goods sold and delivered the complaint must allege the agreed price or the value of the goods. (Sampson v. Grand Rapids School Co., 55 App. Div. 163.) In Such an action the one or the other must be proved, and, hence, must be alleged. Money is presumed to be of its face value, and, therefore, only the amount- advanced need be stated. An allegation that a certain sum remains due is an allegation of a conclusion of law only and not of a-.fact. (Tate v. American Woolen Co., 114 App. Div. 106.) The complaint was, therefore, open to the demurrer that it failed to state facts sufficient to constitute a cause of action.

It is urged that at' least a cause of action is stated for a, fur coat furnished to the child and for which the defendant agreed to pay. Neither the agreed price nor the value of this article is alleged, and hence the allegation is open to the same criticism as the body of the complaint.'

The allegation that an itemized account was furnished to defends ant and that he made partial payments thereon does not cure the ■ defect. The complaint is not framed upon an account stated and the respondent by his brief expressly disclaims that such is his form of action.

The interlocutory judgment overruling the demurrer must be reversed, with costs, and the demurrer sustained, with costs, with leave to the plaintiff to amend his complaint upon payment of the costs of this court and of the court below.

Patterson, P.. J., Ingraham, Clarke and Scott, JJ., concurred.

Judgment reversed., with costs, and demurrer sustained, with costs, with leave to plaintiff t.o amend on payment of costs.  