
    The Schilling Company, Respondent, v. Robert H. Reid & Company, Appellant, Impleaded with New York State National Bank, Albany, and M. L. Ryder Building Company.
    
      Building contract — a condition precedent to the right of a sub-contractor to enforce, payment of a sum, agreed to be paid, by his assignee for the assignment, must be pleaded — allegation of an agreement to pay for work “under contracts and agreements as above set forth ” —• construed to mean that the work was done under a separate and independent agreement.
    
    The Schilling Company, after entering into a building contract with the M. L. Ryder Building Company, assigned that contract to the firm of Robert H. Reid & Co., which firm assumed the obligations thereof and agreed to pay the Schilling Company certain sums of money “at the times specified in said schedules ” attached thereto. Said schedules provided that the sum of $1,848.95 should be paid by Reid & Co. to the Schilling Company, “pro rata of SO per cent to the payments made to Reid & Co. on account of the contract for wainscot, pilasters, door and window trim at the same time when Robert H. Reid & Co. receives payment from the M. L. Ryder Building Company.” The complaint in an action brought by the Schilling Company against Reid & Co, upon the contract to recover the said sum of $1,848.95 did not allege that Reid & Co. had received from the M. L. Ryder Building Company payments entitling the Schilling Company to receive the said sum of $1.848:95 or any portion thereof.
    
      Held, that such complaint was demurrable.
    A complaint, for a first cause of action, set forth a claim for moneys alleged to be due under certain written contracts which were incorporated into such cause of action.
    For a second cause of action the complaint alleged “ That between the 1st day of May, 1903, and the 16th day of May, 1903, the Schilling Company (the plaintiff) also performed work, labor and services under a contract with Robert H. Reid & Company (the defendant) in erecting the bank building known as No. 69 State street, Albany, N. Y., and which work, labor and services were of the value and price of $137.”
    It further alleged “ That said work, labor and services were in the erection and construction of said building and under 'contracts and agreements as above set forth.”
    
      Held, that as the written contracts did not include any provision requiring the plaintiff to perform work, labor and services for the defendant after May 1, 1902, the reasonable and fair construction of the second cause of action was that the work, labor and services mentioned therein were performed under a separate and independent agreement with Reid & Co., notwithstanding the allegation that such work, labor and services were " under contracts and agreements as above set forth.”
    Appeal by the defendant, Robert H. Reid & 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 Albany on the 11th day of January, 1904, upon the decision of the court, rendered after a trial at the Albany Special Term, overruling the demurrer interposed by the defendant Robert H. Reid & Company to the plaintiff’s complaint.
    
      Lewis jR. Parker, for the appellant.
    
      William L. Visseher, for the respondent.
   Chase, J.:

By the complaint it appears that in 1902 the plaintiff made a written contract with the defendant M. L. Ryder Building Company, by which contract it agreed to provide certain materials and perform certain work on a banking building of the defendant New York State National Bank, mentioned therein. Subsequently and in 1902 the plaintiff made a sub-contract in writing with the defendant Robert H. Reid & Co., by which the defendant Reid & Co. agreed to provide certain of the materials and perform certain of the work mentioned in the said contract between the plaintiff and said building company. The plaintiff thereafter and in 1902 made another and further written contract with said Ryder & Co., by which contract it agreed to provide certain other materials and perform certain other work on said banking building. Thsaid Reid & Co. failed .to perform its part of said sub-contract and delayed and hindered the plaintiff in performing its contracts with said building company. On May 1, 1903, a further contract was made by and between the plaintiff and said Reid & Co., by which the plaintiff agreed to assign to Reid & Co. the contract with the building company, and said Reid & Co. assumed all the obligations of the plaintiff contained in its contract with the building company, and said Reid & Co. further agreed to pay to the plaintiff the sums set forth in schedules 1 and 2 attached to and made a part of said agreement “at the times specified in said schedules.”

By said schedules it was, among other things, provided that $1,848.95 be paid by Reid & Co. to the plaintiff “ Pro rata of 20 per' cent to the payments made to Reid & Co. on account of the contract for wainscot, pilasters, door’ and window trim at the same time when Robert H. Reid & Co. receives payment from the M. L. Ryder Building Company.” On May 4,1903, a further written agreement was made by and between all of the parties to this action as a final adjustment of the matters in difference between them, and by said agreement the building company accepted the promises, and agreements of Reid & Co. and released the plaintiff from its promises and agreements and the amount then due from the building company for work done and materials, furnished under the agreements between the plaintiff and the building company was fixed and the part thereof payable to the plaintiff and to Reid & Co. agreed upon. Said last-mentioned agreement also provided how payments should be made to Reid & Co. for work thereafter to be done and materials thereafter to be furnished under said original agreements.

On the 18th day of June, 1903, the plaintiff filed a notice of lien in the office of the clerk of the county of Albany, but for what amount, or for what work, labor and services performed or materials furnished, does not appear. This action is brought by the plaintiff to recover said amount of $1,848.95 and a further sum of $137, and judgment is demanded against the defendant Robert H. Reid & Co. for the aggregate amount of $1,985.95 with interest from the 16th day of May, 1903, and the plaintiff also asks that said amount be adjudged to be a lien upon the building and lot of land described

in the complaint. The complaint does not describe any lot of land except as it refers to work to be done and material to be furnished upon a banking building at 69 State street in the city of Albany. The defendant Robert H. Reid & Co. served a demurrer to the complaint. The issue of law was tried and the demurrer overruled. (Schilling Co. v. Reid & Co., 42 Misc. Rep. 94.) We agree with the Special Term that as against the demurring defendant the complaint purports to set forth a cause of action on contract. If the complaint sets forth facts sufficient to constitute a cause of action on contract the demurrer was properly overruled. The work, labor and services performed by the plaintiff and materials furnished by it prior to May 1, 1903, and its rights under its contracts of 1902 constitute the basis for the promise to pay the agreed amount of $1,848.95 mentioned in. the complaint. By reading the contract of May 1, 1903, with the schedules which are made a part thereof, it appears that the item of $1,848.95 is to be paid pro rata of twenty per cent to the payments made to Reid & Co. on account of the contract for wainscot, pilasters, door and window trim, and the time of payment is expressly stated to be “ at the same time when Robert H. Reid & Co. receives payment from the M. L. Ryder Building Company.” To entitle the plaintiff to recover, therefore, it is necessary for it to allege and show that Robert H. Reid & Co. has received payment from the building company entitling the plaintiff to payment of said $1,848.95, or to some portion thereof.

In addition to the work, labor and services and materials furnished prior to making the agreement of May 1,1903, the complaint alleges “ That between the 1st day of May, 1903, and the 16th day of May, 1903, The Schilling Company also performed work, labor and services under a contract with Robert H. Reid & Company in erecting the bank building known as No. 69 State street, Albany, N. Y., and which work, labor and services were of the value and price of $137.” Although the complaint continues, “ That said work, labor and services were in the erection and construction of said building and under contracts and agreements as above set forth,” it appears that such work, labor and services were performed after plaintiff had entered into the contract of May 1, 1903. The written contracts do not include any provision requiring the plaintiff to perform any such work, labor and services for Reid & Co. The reasonable and fair construction of the complaint is that such work, labor and services of the value and price of $137 were performed under a separate and independent agreement with said Reid & Co.

,The complaint states a cause of action against the defendant Reid & Co. for $137 as upon an independent agreement for work, labor and services performed. It does not show any promise on the part of Reid & Co. to pay the plaintiff $1,848.95 except upon conditions precedent, and as it does not contain allegations showing that such conditions precedent have been performed, excused or waived, the complaint so far as such item is concerned is insufficient.

The interlocutory judgment should be affirmed, with costs, with leave to the appellant to answer in twenty days on payment of costs in court below and in this court.

All concurred.

Interlocutory judgment affirmed, with costs, with leave to the appellant to answer in twenty days on payment of costs in court below and in this court.  