
    Gansevoort Bank, Respondent, v. Empire State Surety Company, Appellant.
    First Department,
    April 20, 1906.
    Pleading—when complaint fails to state cause of action on bond of surety —* demurrer to bad defense thereto overruled.
    A complaint against a surety on a.,bond conditioned, for the payment of a promissory note, which does not allege the covenant of the defendant in full or in legal effect, except that “said bond was conditioned for the payment' of’ $5,000,, does not state a cause of action, and a demurrer to a partial defense thereto should be overruled although the defense he bad. A bad defense is good enough for a bad complaint.
    When such complaint fails to set out the covenant of the bond, allegations of thei breach thereof are mere conclusions.
    Appeal by the defendant, the Empire State., Surety 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 ÜSTew York on the 28th day of June, 1905, upon the decision of t-he court, rendered after a trial at the Rew York Special Term, sustaining the plaintiff’s demurrer' to a partial defense set up in the answer;, also (as stated in the notice of appeal) from a decree entered in said clerk’s office on the 27 th day of‘June,, 1905, sustaining the demurrer,
    
      Benjamin Reass [Hirsh & Rasquin, attorneys], for the appellant.
    
      J. Campbell Thompson, for the respondent.
   Clarke, J.:

This action was brought in March, 1905, to recover the sum of $3,700 on a surety, bond Or undertaking. Defendant interposed as a partial defense, usury, and to this defense plaintiff demurred., The demurrer was sustained. The matters pleaded as a partial defense, are conceded to have been bad, but it is urged that inasmuch as the complaint does not state facts sufficient to constitute a cause of action any defense was good. “A had answer is'good enough for a bad complaint.” A demurrer searches the record for the first fault hr pleading and reachés back to condemn the first pleading that is defective in substance, because he who does not so plead as to invite an issue cannot compel his adversary to so plead a's to accept it.” (Baxter v. McDonnell, 154 N. Y. 432.) It is necessary, therefore, to examine the complaint.

It alleges that one Newman delivered to the plaintiff for value received his note by which he promised to pay $5,000 four months after date, but that prior to the delivery and negotiation of the note plaintiff declined to receive it without additional security, and that when the note was delivered, Newman, as an inducement to the plaintiff to take the note, deposited with it as security for the amount a bond of himself and the defendant, and also a certified check for $1,500, and thereupon the plaintiff took the note, and that the note was subsequently dishonored and protested for nonpayment, no part of which has been paid, except the certified check.

The complaint then alleges that concurrently with the delivery of the note the defendant executed and delivered to the plaintiff a bond by which it .acknowledged it was held and bound to the plaintiff in the sum of $10,000, payment of which it bound itself to make; that the bond was conditioned for the payment of $5,000, and that by reason of the failure of Newman “ to pay the amount due on foot of said note there has been a breach of the conditions in said bond.”

That all conditions were fulfilled and all things happened, and all times elapsed necessary to entitle the plaintiff to maintain this action for recovery on foot of said bond of the amount of said note less by the said” $1,500. The complaint evidently attempts to state a cause of action for a breach of the conditions of the bond. Und,Bisection 1915 of the ©ode of Civil Procedure the. condition" in a bond given in a penal sum suchas the one at bar “has the same effect * * * as if. it contained a covenant to pay the sum, or to perform the act specified in the condition thereof.” The condition of the bond, that is, the covenant of the defendant, is not set forth in full or alleged in its legal effect, except in that it is alleged “ that. said bond was conditioned for the .payment of” $5,000, but it goes on to say “ that solely by reason of the failure as herein state’d of the said Randolph M. Newman to pay the amount due on foot of said note there has been a breach of the conditions in said bond.” It, therefore, appears that the conditions in the bond are not simply for the payment of $5,000, and that the breach of them is predicated solely upon an act or failure to perform an act by Hew man. If that, act of Hewman’s, whatever it may he, be the condition of the bond for the breach of which the action was brought, it is nowhere stated in the,complaint. Bór all that appears this bond may have been for any purpose Beside security for the payment of a note — as, for. instance, as collateral security for the payment-of a mortgage on real estate, or security for the faithful service of an employee. Indeed the complaint leaves it in doubt whether the bond alluded to in the 4th paragraph of the complaint is the same borid attempted to be described in the 7th paragraph thereof.

Hot having set forth the terms and conditions of the bond ofher than the -final sum thereof and the amount of the condition thereof, V d ' the attempted allegation of the breach thereof is solely of conclusions. • “ That all conditions were fulfilled”-—-there.being no statement of what the conditions were •— “ and all things happened ”—no things being set forth — “ and all times elapsed necessary to entitle the -plaintiff to maintain this action with no dates or periods or times set forth, are pure conclusions and hence bad. When' this action was commenced the Code required that the complaint must contain “a clear, precise and unequivocal statement of the facts constituting .each cause of action.” (Code Civ. Br.oc. •§ 481, subd, 2,, as amd. by Laws of 1904, chap. 500.) There are no facts set up to enable the court to determine whether the alleged conclusionsi are properly drawn.. It nowhere having-, been stated in the complaint that the bond was conditioned by the payment by Hew-man of the amount due on foot of said note, the allegation in the 8th paragraph' is a clear legal- conclusion. It does riot, give the defendant an opportunity to deny and' raise an issue. That this complaint is bad is too obvious to justify citation.

It follows, therefore,- that the judgment sustaining the demurrer to the partial -defense should be reversed, with costs, upon the ground of'the insufficiency of the complaint, and the demurrer overruled, with costs, with leave to the plaintiff to withdraw the demurrer on payment of such costs or to apply to the Special Term for leave to amend. "

The defendant in its notice of appeal also appeals from the .“ decree ” sustaining the demurrer, upon which the interlocutory judgment was entered. There is nothing that this could apply to except the decision upon which the interlocutory judgment was entered, and as no appeal is allowed by the Code of Civil Procedure from a decision, such appeal is dismissed, with costs. (Spies v. Munroe, 35 App. Div. 527.)

O’Brien, P. J., Ingraham, McLaughlin and Houghton, JJ., concurred.

Appeal from decision dismissed, with costs. Judgment reversed, with costs, and demurrer overruled, with costs, with leave to plaintiff to withdraw demurrer on payment of such costs, or to apply to the Special Term for leave to amend. Order filed.  